By Craig Forcese

Full Professor
Faculty of Law
(Common Law Section)
University of Ottawa

Twitter: @cforcese

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Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

Monday
Jul112016

Pragmatism & Principle: Intelligence Agencies & International Law

I have just post my most recent article on the topic of international law and extraterritorial intelligence agency activities on SSRN here (alternative download: here).  This article focuses on (to borrow the US parlance) "covert action", and was a reponse piece to an excellent, lengthier article by University of Virginia law school Professor Ashley Deeks, found here.

Despite this US context, I hope my essay is useful to Canadian circumstances as well.  Given changes to CSIS's mandate in C-51, the observations in the article are relevant to CSIS's new overseas "threat reduction" powers.  As I have argued before, the customary international law principles discussed in this article are deemed part of the common law of Canada through the Canadian rules of reception of international law.  Trangressing these standards would, in this manner, violate a "Canadian law".  This would trigger the requirement to obtain a Federal Court warrant prior to engaging in this activity, per the (C-51 amended) language in the CSIS Act.  Under those same amendments, the Federal Court could issue a warrant, even in violation of this international law.  But I suspect based on past practice, it would scrutinize carefully the international law principles at issue, and would be anxious about the implications of blessing conduct that may prove controversial. 

The abstract of my article is as follows:

This essay dissects the concept of “intelligence activities” and distinguishes international law as applicable to spying versus that relevant to convert actions. It urges that while international law is mostly silent on peacetime spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and which transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may be readily violated by at least some sorts of covert actions, above and beyond human rights principles protecting the individual. Ambiguity exists, but should not be over claimed. The article then contemplates the virtues of tempering this legal formalism to permit less than full legal compliance in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, the article warns that a sliding compliance scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.

Tuesday
Jun282016

10 Minute Primers: An Enigma Wrapped in a Secret, Governed by Uncertain Law: CSE and metadata

Over the last several years and certainly since the Snowden revelations, there has been considerable discussion and controversy over the interception amd acquisition by Canada’s signals intelligence agency, the Communications Security Establishment, of metadata.  In this 10 minute primer, I do my best to lay out the basics on the legal and policy framework of this interception and collection, as well as discussing controversies and reform possibilities.

 

10 Minute Primer: An Enigma Wrapped in a Secret, Governed by Uncertain Law: CSE and metadata from Craig Forcese on Vimeo.

Tuesday
Jun282016

10 Minute Primers: Detailed Overview of Proposed National Security & Intelligence Committee of Parliamentarians (Mandate and Challenges)

This is the second, brief explainer video on national security accountability review in Canada.  The first provided a general overview of the concept, and its structure in Canada. In this video, I focus more specifically on the National Security and Intelligence Committee of Parliamentarians proposed in Bill C-22 (as it exists after first reading in the House of Commons).  In the video, I raise concerns about the present limits on the Committee of Parliamentarians, and caution that while it is a marked improvement on the status quo and will make important contributions to "efficacy" review, I doubt it will be a robust review of the propriety of agency activities.  I spell out why that is, with a focus on the committee's access to information.

10 Minute Primer: Assessment of National Security and Intelligence Committee of Parliamentarians Functions from Craig Forcese on Vimeo.