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This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

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

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Sunday
May282017

How does CSIS threat reduction work?

As I write this, I am still hoping the government will be introducing legislation in Parliament before the summer recess responsive to its promise to reform the "problematic" aspects of Bill C-51 (2015). One of the most controversial aspects of C-51 were new powers given to CSIS to engage in "threat reduction" measures, and especially powers to break any Canadian law and breach the Charter, where pre-authorized by Federal Court warrant.

I am not among those who thinks CSIS should have no threat reduction powers. But I am among those who thinks there is no credible basis for the sweep of powers codified by C-51. As discussed at length in False Security, the untextured language in C-51 opens the door to inevitable legal challenges (especially the idea that CSIS could be pre-authorized in a secret, unappealable judicial process to breach each and every Charter right).  It also compounds problems of confliction with police anti-terror investigations.  Those operational challenges are discussed also in a blog posting here. (That posting may also serve as a refresher in relation to the threat reduction power).

To their credit, CSIS and RCMP clearly appreciate the risks involved. CSIS and RCMP has concluded a protocol -- called One Vision 2.0 -- that augments the level of inter-agency deconfliction. It has some useful features that could minimize the downstream effect of CSIS activities on prosecutions. (Even if CSIS may be immunized from prosecution where it operates pursuant to a lawful threat reduction power, its activities may still be raised as abuse of process as part of a defence by a target, should that target ever be charged with, e.g., a terrorism crime. That has happened even for the police, when they properly exercise their Criminal Code s.25.1 powers to violate the law in the course of an investigation. See R v JJ, 2010 ONSC 735 at paras 282 and 302, leave to appeal refused, [2010] SCCA No 161).

CSIS and Global Affairs also have their own memorandum of understanding on CSIS threat reduction conducted outside of Canada (which is permitted under the bill C-51 framework).

And a mostly-redacted ministerial direction may include language on how CSIS is to deliberate with other government agencies before doing threat reduction.

I say "may" because CSIS operational policy document I obtained under Access to Information suggests it does.  Though deeply redacted as well, this document has some interesting features, which I thought worth canvassing in this blog entry.

Mandatory Government Consultation

The policy says, consistent with ministerial direction, "consultation with GoC partners, including the Royal Canadian Mounted Police (RCMP), DFATD [now Global Affairs] and others as appropriate, will occur prior to seeking approval to undertake s.12.1 measures".  This is especially true for CSIS anti-terror investigations (that is, investigations relating to s.2(c) threats to the security of Canada): "The RCMP must be consulted on all s.12.1 measures for all investigations in relation to s.2(c) of the CSIS Act and others as appropriate".

Global Affairs, for its part, "will be consulted on s.12.1 measures that are assessed as having potential foreign policy implications".

These seem like obvious steps, but my sense is that close synergies between departments to make sure responses are coordinated and do not act at cross purposes has been a work in progress, and a renewed priority since at least 2014. CSIS's more aggressive post-C-51 powers make it urgent to get this right, or watch CSIS operations scuttle prosecutions.

Last Best Tool

There is also language stating that CSIS employees must "consider the range of national security tools available to respond to threats to the security of Canada; the use of s.12.1 measures in an additional tool". I think this language could be stronger, but the theme is a good one: threat reduction is an extreme measure. Disruption may, notoriously, go sideways and prompt unforeseen blowback. Preserving it as a "in case of emergency, break glass" power should be the order of the day.

Approvals

An inevitable conundrum created by C-51's inelegant structure is the question of when CSIS needs a court warrant prior to conducting threat reduction. The current language is this: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1." 

It follows that a warrant is required where a measures will (not might) contravene a right or freedom under the Charter or be contrary to "other" Canadian law.

"Will" is a high threshold. "Other" law is a big universe. So much will depend on legal advice. The CSIS procedural document specifies that CSIS "will consult with CSIS Department of Legal Services (DLS) to determine if a warrant may be required".

Based on what we know at present, CSIS has conducted threat reduction a few dozen times since 2015. It has never sought a warrant, meaning CSIS and its lawyers concluded that the threat reduction did not meet this "will" contravene Canadian law standard.

My issue is: who will audit this legal advice? Will SIRC have the in-house capacity to review legal advice?  Is there a "red team"?

Consider this example: CSIS concludes that individuals may be radicalizing to violence under the sway of a charismatic figure. (Research suggests that such figures can be pivotal.) Absent, though, a basis for criminal charges or a peace bond or some such thing, there is no legal restraint that can be imposed on the figure. And so CSIS decides to disrupt by engaging in, well, false news. It undermines the credibility of the figure by, say, spreading rumours among his followers that the leader is a fornicator, liar, swindler (whatever).

Does CSIS need a warrant? I would say: "yes".  Rumours like this -- if untrue -- are defamation. Defamation is contrary to "other" Canadian law -- the common law. But would CSIS and its lawyers read the law in this manner and seek a warrant?

Another example: CSIS engages in any threat reduction in a foreign country without the permission of the territorial state.  Does CSIS require a warrant?  I would say "yes". The extraterritorial exercise by a state of "enforcement jurisdiction" (basically any state power) without consent on the territory of another state is a violation of customary international law. Customary international law is part of the common law of Canada, unless displace by statute. There is no such displacement, not least since Parliament is presumed to legislate in conformity with international law. (To the extent displacement of international law exists in the CSIS Act, it comes only under court warrant: a court may authorize a breach of foreign or other -- as in, international -- law, under s.21.1(4). But the Act says nothing about CSIS breaching customary international law unilaterally). And so CSIS conduct is "contrary" to "other" Canadian law. (See discussion here, and the longer discussion here.)

Would CSIS and its lawyers read the law in this manner? I don't know. Do they have international lawyers working with them on this?  Would GAC lawyers be "read in" on the operation to this level?

All of this is to say: I wonder how we will tell whether CSIS is getting the warrants it should be getting.

Saturday
May272017

Secrets and Strategic Leaking: Situating Canada among its close allies

Spring has sprung, and so has the United States intelligence community. Specifically, the last several months have witnessed an astonishing pattern of leaks from the US government.  Some of the leaks come from the White House -- in one case apparently as part of run-on bombast from the man at the top. But in the wake of the Manchester bombing last week, some leaks seem to be coming out of the intelligence community itself. American leaks have fuelled angst among allies, most recently the British.

The New York Times ran two interesting analyses of US leaking of information collected by British authorities in the Manchester bombing investigating (here and here). They note how the culture of leaking is embedded in the United States in a manner without parallel in the United Kingdom, not least because of the broad reach of the First Amendment. I suspect also that the competing power centres in the American republican system (Congress/Executive) also facilitate an environment receptive to leaking. And the sheer size of the US intelligence community, and its vast penumbra of contractors, has contributed to leaky information control (the Snowden matter constitutes the obvious poster child for this).

But where does (Westminster) Canada lie on a spectrum of leakiness, with the United Kingdom on one pole and the United States on the other? My instinct is to say we are closer to the United Kingdom than the United States, with caveats.

The Law

First, there are many serious penalties for leaking classified information. On top of workplace discipline and loss of a security clearance, there is a prospect of going to jail. Security and intelligence community employees (and a number of others) are "persons permanently bound by secrecy" under the Security of Information Act (SOIA). It is a serious crime for them to reveal special operational information.  It could also be a breach of trust under the Criminal Code for any official to leak any classified information. And s.18 of the CSIS Act includes its own offence for leaks of Service information relating to source identity, applicable to those acting under the CSIS Act (a category that would include not just CSIS officers and employees, but also those of SIRC and ministerial officials.)

US and UK law also include penalties for leaky intelligence employees.

But we are more like the United States in one key respect: our Security of Information Act is probably even more unworkable than the US Espionage Act (and way more unworkable than the UK Official Secrets Act) when it comes to leaks by officials, other than those permanently bound by secrecy, to entities, other than foreign entities or terrorist groups. So, for instance, a leak by an official (other than a person permanently bound by secrecy) to the Canadian media would be very difficult to prosecute under the Security of Information Act (although Criminal Code breach of trust would still apply).  The reason for this is that the "anti-leakage" provision of SOIA (the infamous section 4) has not been updated since 1939 and is unconstitutional gibberish -- and so concluded the Ontario Superior Court of Justice in 2006.

We are also more like the United States in our constitutional arrangement. Pointing to Charter s.2, the Federal Court has recognized a constitutionalized right in Canada of whistleblowing. But this right is limited by s.1 considerations (See discussion in Forcese & Freeman, Laws of Government, 2011 at 220). And basically, that means that whistleblowing is limited to dire necessity, and must be done first through an internal mechanism and not initially to the media and public.

This approach is codified even for persons permanently bound by secrecy as a defence to a criminal charge under the SOIA, where they might otherwise be convicted for leaking special operational information. That defence specifies that whistleblowing should go through SIRC or the CSE commissioner, although the provision (s.15) leaves a lot of unanswered questions about how that mechanism might work.

Practice

On balance, we seem to be more like the UK in our practice. It is true that Canada has management issues with classified information. For instance, the CBC reported in November 2016 that "[t]here have been more than 10,000 incidents of classified or secure documents being improperly left or stored since Prime Minister Justin Trudeau's government came to office." This included 659 cases in CSIS itself. But all countries struggle with information management -- that is different from intentional leaking.

And CSIS has complained regularly about compelled disclosure in security certificate and Canada Evidence Act proceedings. But again, disclosure by court order is different from leaking.

In relation to intentional, unauthorized disclosure (aka leaking) of intelligence by the intelligence community or related entities (such as review bodies or special advocates), I cannot think of many (publicized) examples from the recent past.

The two instances that do come to mind were concerning, not because they revealed sensitive secrets but because they constitute examples of someone in government selectively disclosing intelligence information (or innuendo at least) to cast the security services in a favourable light.

The first was the leak concerning Maher Arar, during the Arar inquiry. This involved both selective leaks of information/analyses along with slanderous editorializing about Arar's character. And it came just as the RCMP and CSIS (among others) were being rightly castigated for their failings in the treatment of Arar. The Arar commission was so concerned about this behaviour, it added an entire chapter on the leaks to its report. And it said this about leaks done in 2003:

Unlike many other actions of Canadian officials that I describe in this report, leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.

 

The second major example were similar leaks relating to Messieurs Charkaoui and Abdelrazik, again as the government was losing in front of a judge while trying to defend its efforts to deport and exile, respectively, these men.

It is unclear who did all this leaking -- a lot of the information was in circulation in government departments outside of the RCMP and CSIS. Both of these leak cases prompted RCMP investigations -- none have resulted in any further action being taken. In the Arar matter, the RCMP's hamfisted investigation involved a raid on Ottawa Citizen journalist Juliet O'Neill's home and office.  That in turn prompted the Citizen to challenge the constitutionality of s.4 of the Security of Information Act -- successfully.

In the second matter, an investigation has apparently been ongoing, but here again the RCMP appears to have made serious strategic errors by targeting journalists in an effort to find their sources. And on top of that, they did so in a manner that did not comply with ministerial directions on national security investigations that implicate sensitive sectors (such as the media).

I discuss the fall-out from this conduct here.

Conclusion

So in sum: We are like the United Kingdom in our strict rules and a general pattern of few intelligence leaks from our broader intelligence and security community.  We are like the United States in that leaking raises constitutional free speech issues (and also constitutional safeguards on overbroad anti-leakage provisions, like s.4 of SOIA).  And we have an unpleasant tradition -- however modest -- of government leaks to the media designed to cast the security services in the most favourable light when those services are embroiled in controversy.

 

Friday
May192017

The Unraveling of Canada's Legal Justification for Force in Syria? The Trouble with "Unwilling and Unable"

Events yesterday in Iraq seem likely to complicate the legal basis for Canada’s participation in the anti-Daesh coalition. As summarized by Jennifer Daskal over at Just Security:

U.S.-led forces hit a convoy carrying pro-Syrian government forces advancing inside a deconfliction zone inside Syria. The convoy was reportedly traveling toward the al-Tanf military base used by U.S. coalition forces to train anti-ISIS fighters. U.S. and coalition officials assert that the Russians “apparently” attempted to dissuade the convoy from entering the area, that they first fired warning shots and deployed two US aircraft as a show of force, and only struck the convoy after it failed to heed the warning, as a means of protecting U.S. and coalition forces.

Jennifer Daskal also reports US official statements that the “strike was a proportionate response done for purposes of force protection—an act of self-defense in an effort to protect U.S. forces.” She observes: “This is, on its face, quite plausible. And, if accurate, lawful as a matter of both international and domestic law.”

The facts remain uncertain. But I shall assume for the sake of this analysis that the convoy comprised Syrian government controlled militia or military.  And I shall assume that Syria is now actually interested in fighting Daesh (whether or not this particular convoy was tied to that effort).

If so, I am less persuaded that the strike was lawful as a matter of international law. Or more accurately, I think it undercuts that entire legal basis for the presence of Coalition forces in Syria.

The Basics

Leah Sherriff and I examine the international law of using force against a non-state actor in the territory of another state in our article on targeted killing. Interested readers will find there the detailed footnotes for the sources and principles I cite below.

To summarize, a state may not use force against another state, or on that other state’s territory without the territorial state’s consent. There are two exceptional circumstances.

The first is UN Security Council authorization. That does not truly exist for the conflict against Daesh, notwithstanding the S/Res/2249 (2015). I agree with those analyses that see this resolution as an intentionally ambiguous resolution that falls short of the language associated with Security Council authorizations on use of force.

The second exception is self-defence against an armed attack, including collective self-defence done in conjunction with a state that has suffered this attack. Self-defence against Daesh is, in fact, the legal basis for Canada’s use of force in Syria. In late October 2014, when Canada joined the American-led coalition against Daesh in Iraq, it reported to the UN Security Council that Canada was invoking individual and collective self defence under article 51 of the UN Charter, explaining “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory”.[1]  On the specifics on the Daesh case, Canada is asserting collective self-defence with Iraq against Daesh, with self-defence extended to Syria (where Daesh also operates).

But Syria itself has not consented to the use of force on its territory (and even if it had, tacitly or otherwise, it could revoke that consent). And it itself is not the originator of the armed attack. Hence we face the common post-9/11 conundrum:  Directing military force against a non-state actor almost always requires use of force on the territory of another state, including some that do not consent.

There is serious incongruity in the idea that a non-state actor may use violence whose scope and effect rises to the level of armed attack, and then hide behind the territorial sovereignty of a state that, however unwillingly or unwittingly, serves as host. And as a practical matter, some states – including, especially, the United States – have rejected a formalistic approach that would allow this shelter. These states have instead pursued a doctrine of “unwilling or unable”. In Ashley Deeks’s words:

The “unwilling or unable” test requires a victim state to ascertain whether the territorial state is willing and able to address the threat posed by the nonstate group before using force in the territorial state’s territory without consent. If the territorial state is willing and able, the victim state may not use force in the territorial state, and the territorial state is expected to take the appropriate steps against the nonstate group. If the territorial state is unwilling or unable to take those steps, however, it is lawful for the victim state to use that level of force that is necessary (and proportional) to suppress the threat that the nonstate group poses.[2]

Whether “unwilling or unable” is truly part of customary international law is hotly debated. However, the international community has demonstrated more receptivity – although certainly not enthusiasm – for the doctrine since 9/11 and especially since 2014. The United States and Turkey have reaffirmed the existence of an unwilling or unable doctrine to justify self-defence against Daesh in Syria, and they are not alone. They have been joined by Australia, Belgium, Canada, Germany, and, implicitly at least, Denmark, Norway and the United Kingdom. In response to the US notification to the United Nations, then Secretary General Ban Ki-Moon reportedly stated: “I also note that the strikes took place in areas no longer under the effective control of that [the Syrian] government.” Other states, such as Jordan, Bahrain, Qatar and the United Arab Emirates have participated in air strikes in Syria without articulating legal justifications, leading at least one commentator to posit that they are “relying on the same legal theory as the United States and UK.”

Still other states, such as France, have embarked on a similar course under the shelter of a UN Security Council resolution 2249 (2015) that is (as suggested) creatively ambiguous about the legal authority for directing force at Daesh in Syria.

Collectively, this constitutes considerable state practice and – in the case of the United States, Turkey, Canada, Australia, Belgium and Germany – emphatic opinio juris supportive of the “unable or unwilling” doctrine as a basis for invoking UN Charter Article 51 self-defence.

 

Yesterday’s Events

State practice of what is less clear. It is one thing to intrude on a state’s territory to exercise self-defence strictly limited to the attacking non-state actor. It is quite another to stray beyond this terrorist-specific targeting and direct force against the territorial state’s own assets or infrastructure.  That is why the US missile strike against the Syrian airbase after the chemical weapons attacks in April cannot be justified on the same self-defence theory supporting use of force against Daesh. (See my own views on that incident here and here.)

Yesterday’s clash with Syrian forces raises new legal doubts. They boil down to this: how can the “unwilling and unable” justification for force in Syria be maintained once the Syrian government asserts itself on its own territory against Daesh? “Unwilling and unable” begins to look like transparent pretext. Moreover, it beggars imagination that it could be used as legal justification for a Coalition forces strike staving off the very government said to be unwilling and unable in the first place.

To conclude that Coalition use of force is lawful in these circumstances you would need to accept the following:

1. Coalition forces have been lawfully employing force against Daesh because Syria was unwilling and unable.

2. The unwilling and unable justification persists even after the territorial state demonstrates it is no longer unwilling and unable.

3. And more than that, the Coalition forces may lawfully use military force to suppress efforts by the once unwilling and unable state aimed at reasserting control over its territory.

The “force protection” argument for yesterday’s Coalition strike only gets you so far. “Force protection” is not lawful self-defence if the presence of the Coalition now itself constitutes an armed attack against Syria, because the original “unwilling and unable” basis for the Coalition presence has evaporated. (Imagine this outside of the Syria context: If one state invades another, and parks itself on the second state’s territory, an effort by the invaded state to resist the invasion is not an attack against which the invading state may claim self-defence.)

Conclusion

I acknowledge that these legal niceties will determine little of what happens in Syria. And I imagine others will counter with their own legal reasoning. That might be something like this: once lawfully engaged in self-defence under an unwilling and unable doctrine, the Coalition may use such proportionate force as is necessary to end the armed attack by Daesh, including against the Syrian government if it gets in the way. Put another way, the unwilling and unable justification is a one-way-ratchet that cannot be notched back because the delinquent territorial state has a change of heart or capacity.

If that is the legal argument, it amounts to: once a failed state whose sovereignty has been suspended, always a failed state with a suspended sovereignty. That does not seem the sort of position likely to increase international stability or avoid capricious misuse in the future.

At the very least, events on the ground in Syria demonstrate clearly the risk of predicating use of armed force on a fuzzy doctrine like “unwilling and unable”.  States do not always remain unwilling.  And to use force to ensure they remain unable would be the height of absurdity.

In sum: since Canada is participating in the Coalition, it will be drawn along into a difficult legal quagmire if the anti-Daesh campaign now bleeds into an armed conflict with the Syrian government.

 


[1] Letter dated 31 March 2015 from the Deputy Permanent Representative of Canada to the United Nations addressed to the President of the Security Council, UN Doc S/2015/221 (31 March 2015)

[2] Ashley S. Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense,” (2012) 52(3) Virginia Journal of International Law 483 at 487-88.