About this Project

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.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

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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Latest Book: Available from Irwin Law in April 2018.

Thursday
Jul192018

Oh, What Tangled Webs the CSIS Act Weaves: The Federal Court's Latest Decision on CSIS's Foreign Intelligence Mandate

The Federal Court this week released a lengthy decision that, unusually, dealt with CSIS’s s.16 “foreign intelligence” mandate. In so doing, it proved, once again, that an Act mostly left fallow for a generation spits up weeds.

The decision is deeply redacted, and we know precisely nothing about the target, subject-matter issue or investigative technique at issue. And that means there is no way for me judge whether I think the Court “got it right”. But the underlying storyline is easy enough to imagine, even if the precise specifics are secret. And the policy issues can be surfaced with a hypothetical.

Who Was the Target?

The target was a foreigner physically in Canada. They could not be Canadian (or a Canadian permanent resident) – CSIS cannot investigate a Canadian or Canadian permanent resident under its s.16 mandate. And they had to be in Canada. This was a warrant application. A warrant would only be required, constitutionally, if the foreigner was in Canada. And besides, if the foreigner was overseas, CSE could have targeted him or her under its foreign intelligence mandate, Mandate A.  But CSE cannot direct its foreign intelligence activities at any person in Canada. So bottom line: the person was in Canada.

What was the Foreigner in Canada in Doing?

We do not know what our foreigner in Canada – who we shall call Bob – was doing. We do know what Bob was not doing. He was not involved in terrorism, espionage, sabotage or foreign-influenced activities (at least not foreign-influenced activities within Canada or related to Canada, while detrimental to the interests of Canada). And I suppose for the sake of completeness, I should add Bob was not involved in subversion of the Canadian government. Because if Bob was involved in any of these things, he would pose a “threat to the security of Canada” and this would have been a s.12 CSIS “security intelligence” investigation.

But it was a s.16 investigation.  Which means that Bob was being investigated to collect information or intelligence relating to the capabilities, intentions or activities of any foreign state or group of foreign states or some foreign person. This is what is called “foreign intelligence”. Basically, that means anything other than security intelligence.

Bob from Mordor

So, because all the good parts in the decision are redacted, let’s make up our hypothetical: Bob was a diplomat from the Embassy of Mordor, who was in fact from the Mordor Acquisition and Liaison Intelligence Collation Entity (MALICE).  And while in Canada, Bob was part of an intelligence operation designed to influence the Government of Isengard, in a manner advantageous to Mordor.

Global Affairs Canada, which has an obvious interest in developments in Isengard, wants to get a handle on this foreign influence campaign. And so, it turns to CSIS. There is no clear way an investigation into this influence op falls within a “threat to the security of Canada”.  (I suppose in some cases, it would be so egregious as to be “detrimental to the interests of Canada”, even though directed at a third state, but you can only bend that language so far.)

So, under s.16, the Minister of Foreign Affairs requests, and the Minister of Public Safety agrees, that CSIS will conduct a foreign intelligence investigation.  But s.16 also says that CSIS may only engage in foreign intelligence collection “within Canada”.

Alice of Isengard

That works fine, to a point. Bob is in Canada. But his chief asset in Isengard is Alice, someone who has influential contacts in the National Repressive Ring Association (NRRA). And Alice is not in Canada.  And moreover, Bob and Alice have 1990s style operational security.  When they communicate, they do so by logging into Gondor Mail (G-Mail), an email service in Gondor.  And they modify draft emails in an email account to which they both have access, housed on G-Mail’s Gondor-based servers.

The Warrant on Bob

CSIS wants to monitor Bob’s communications in Canada. Now Bob is a foreigner, but as noted, he has Charter s.8 rights. And so CSIS needs a warrant.  And CSIS wants, with that warrant, to wiretap not just Bob’s phone but also access his email communications. But, nuts, the G-Mail servers are overseas. And CSIS is no position to somehow insert keystroke logging on Bob’s embassy computer. And so, the only way (I shall assume, because I am not a tech-guy) to access the G-Mail draft folder is by hacking into the Gondor-based servers.

Now, pursuant to Mandate C, CSE can provide the technical wherewithal to do this. But CSIS needs to have lawful authority to seek this CSE assistance, meaning if CSIS needs a warrant, CSIS has to have one.

Whether CSIS needs a warrant may be a close call. If the communication is outside Canada, then perhaps the Charter does not apply because it generally does not apply extraterritorially. After all, if Bob were physically outside Canada, he would enjoy no Charter rights.  (The Hape exception would apply only if Canada were in violation of its international human rights obligations -- not clear cut here – and, says earlier Federal Court jurisprudence, where the victim was a Canadian – not true here.).

So, is it too much to say that CSIS's intercept of Bob’s Gondor communications doesn’t require a warrant?  Hmmm. Maybe. But this might still be a “private communication” under the Criminal Code (and I could easily change the facts so that it would be). And if so, the fact that one side of this communication starts in Canada is enough to require a judicial authorization process.  So not much relief there.  And besides, CSIS remembers the infamous Re X case and decides it is better to go to court now, to avoid a train wreck later.

So CSIS does the appropriate thing and concludes it probably needs a warrant. And more than that, it might also reasonably argue that on our facts (communication commences in Canada, travelling overseas through Canada etc) the collection really was “within Canada, enough”, and thus squares with s.16 of the Act. (A view that would be consistent with: the assumption that the Charter applies to Bob’s transiting communications, and the concept of private communication in the Criminal Code, and arguably the concept of territoriality in cases like R. v. Libman.)

But there is also another view: the content of what CSIS is intercepting is not in Canada. It can only be accessed by reaching out electronically across Canadian borders to Gondor, all the way over in Middle Earth.

So, what’s the answer? How do we read “within Canada” in s.16? Well, obviously it means “within Canada”, but what does that mean for footloose-communications? The redactions are thick in this case, and we really don’t know what sort of extraterritorial activity was at issue. But after a lengthy and seemingly exhaustive statutory interpretation exercise, the Federal Court says: this [REDACTED FOR PAGES] extraterritorial CSIS intrusive investigative activity was not within Canada.

Let's assume that hacking into Bob's Gondor Mail would also exceed whatever threshold of impermissible extraterritoriality was at issue in the Federal Court case. That is, it too would not be "within Canada". So, CSIS, in our story, you are out of luck. Maybe you should just ask Gondor to collect and share the Gondor Mail communications itself?  But do you want to rely on Denethor II, son of Echtelion II, Steward of Gondor? In The Two Towers, he struck me as a bit unhinged, to be honest.  And perhaps he was a little too inclined to appeasement to Mordor.

The CSE Knock-On Effect

Ok, then. Open Door Number 2: if the communication is not “within Canada”, then that must mean that CSE can, in fact, collect under Mandate A (foreign intelligence). Surely, if the communication being targeted is not within Canada (and involves no one, but foreigners), then CSE collection activities are not being “directed at Canadians or any person in Canada” (the quoted phrase being a stipulation that limits what CSE can do under Mandate A).  But hold that “surely”.  It is a bit disingenuous to say: “so we are investigating Bob, who is a person in Canada, and we are specifically interested in Bob, and that is why we are doing this collection activity, but when we go after this particular communication, we are not directing collection at Bob, the person in Canada”.  That seems too clever by half.

And anyway, the Federal Court has a collateral discussion in this case with knock-on implications that will make life for CSE very difficult. Basically, intrusive activity overseas of the sort at issue in the case (whatever they may be) constitute an extraterritorial exercise of enforcement jurisdiction. Done without the consent of the territorial state, this violates international law. And Canadian statutes will be read to comply with international law, unless they explicitly derogate from it. And neither the CSIS Act (for s.16, but not for s.12) nor the current National Defence Act (for CSE) nor the proposed Bill C-59 CSE Act derogate from international law. (On the latter issue, see my discussion here.)

So CSE, you have no legislative jurisdiction to engage in extraterritorial activities of (at minimum) the same degree or more intrusive than the ones at issue in this Federal Court case.  Which means you can kiss Mandate A and B goodbye under the current National Defence Act, to the extent they exceed this threshold (which, reading between the redactions, is quite low). And unless you amend bill C-59, you can also kiss those defensive and active cyber powers away.  Unless, that is, you just want to plow ahead and see what the Intelligence Commissioner, the new National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians have to say about this issue. This, in my view, would be insane, since a quick flick of the legislative pen could cure this problem for you, CSE.

Fixing the CSIS Act

As for CSIS, well, you could roll the dice and appeal. Or you too could fix this by legislative amendment (which is what happened to the s.12 power when this same issue arose a decade ago, and was resolved by 2015’s C-44). 

But let’s be clear here: if you want CSIS to have its current extraterritorial security intelligence functions (plus its post-2015 threat reductions powers) and now extraterritorial foreign intelligence functions, you are creating, essentially, a blended MI5/MI6.  And until recently, it was considered a bad idea to put security intelligence and a full foreign intelligence function in the same agency: rule-of-law security intelligence should be kept segregated from somewhat-less-than-rule-of-law James Bond.

So, we might wish, finally, to do some serious thinking about design issues, accountability issues, resource issues, training issues, etc, before we knee-jerk amend the CSIS Act (yet again). So, enter a ponderous process of deliberation. On the other hand, this is not a situation you want to leave hanging. Because in my story, Bob from MALICE is still out there, swanning away on Gondor Mail. (In truth, I don’t know how important that prospect is – it took to 2018 before this issue got to court, and yet presumably the technological dilemma I describe here could have arisen decades ago. So maybe this case won’t have much practical effect.)

But bottom line: sometimes national security law is hard. And perhaps it is sometimes harder than it has to be. I think it’s often hard because we don’t update the statute law enough. But that’s just me.

Monday
Jul162018

Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.
Wednesday
Jun062018

Killing Canadians: Targeted Killing is No Longer Theoretical for Canada

Over at Global, Stewart Bell has a series of excellent stories on the “targeting” of Canadians in the armed conflict in Syria and Iraq. For the context, I recommend readers first review those stories here and here.

A few years back, Leah West and I memorialized our understanding the laws governing the overseas killing of Canadians. Much of this focus was on armed conflict situations, where killing of combatants is, for the most part, lawful. In Stewart’s most recent article, he cites me proposing the new National Security and Intelligence Committee of Parliamentarians (NSICoP) take up this issue, as its UK counterpart did in 2015. In our article, Leah and I urge:

Transparency on the legal basis of targeted killings by those states that engage in it has been modest, giving rise to the fear that such killings amount simply to expedient assassinations. Should the Canadian government embark on the path of targeted killings of Canadian nationals abroad (and, indeed, the extraterritorial use of force at all outside conventional “hot” armed conflicts), it should aim to meet a higher standard of accountability. The UK parliamentary committee studying the United Kingdom’s 2015 targeted killings made repeated observations about the indefiniteness of the UK government’s legal positions on key issues, a sobering assessment. It also observed, correctly, that

for the Government’s policy to command public confidence, and to make it more likely that decisions pursuant to it do not lead to breaches of the right to life, the decision-making process must be robust, with sufficient challenge built into the process, rigorous testing of intelligence to minimise the risk of mistakes, and access to the requisite advice including legal advice at the appropriate stages in the process.[1]

After all, targeted killing both presumes guilt and applies the sternest sanction any state could impose. It follows that for the sake of its credibility — and to preserve its personnel from legal exposure — the Canadian government should make its choices on the difficult legal conundrums raised in this article now rather than in the midst of a crisis. What is more, the government should articulate and debate those positions openly since these questions demand difficult policy choices that are not, in many instances, preordained by clear, existing law.

The bottom line is that we know next to nothing about the Canadian government’s legal thinking on targeted killing. The basic international humanitarian law issues are plain. But within those issues are a series of decisions on matters of legal interpretation that, to the best of my knowledge, have never been articulated by the government.  And so if I were the NSICoP, I would want answers to these questions:

International Law

  1. As a “jus ad bellum” matter, the government’s theory for lawful use of force in Syria is predicated on an “unwilling or unable” theory of self-defence, which it argues brings it into compliance with the UN Charter’s framework. What is the outer limit of that theory?  Now that Syria has demonstrated a greater willingness and ableness, does the self-defence justification abate?  This is the major problem with “unwilling or unable”: is it a one-way ratchet?
  2. The government clearly believes there is an armed conflict in Syria/Iraq, which triggers the “jus in bello” of international humanitarian law (or the law of armed conflict, LOAC). At what point does the degree of violence with the remnants of ISIS fall below the threshold for a non-international armed conflict, requiring thereafter full application of human rights law rather than LOAC?  Put another way, once an armed conflict is triggered, does it ever turn off? (This is a real issue since 9/11).
  3. Where LOAC applies, combatants may be targeted. And “civilians” who directly participate in hostilities (DPH) lose protected status and may be targeted. What does the government see as the threshold for DPH? Is it the International Committee of the Red Cross (ICRC) standard, which permits targeting only while the civilian is en route, partaking and returning from hostilities, or is does it follow the US view: once a civilian DPHs, they remain targetable until they permanently abandon participation in hostilities. Alternatively, would Canada consider that anyone who journeyed to join ISIS was in a continuous combat function and targetable, and therefore take a position that would surely exceed how the ICRC defines this concept?  I suspect that Canada simply follows the US on this, since we are simply participating in US target packaging. Would we continue to follow them if the US takes the view that the “armed conflict” against ISIS extends beyond the hot theatre of Iraq and Syria and extends to wherever ISIS affiliates may be found? That would be very controversial, as it means the places where you can lawfully kill becomes, potentially, the whole world.

Constitutional Law

  1. Does the government agree that the Charter applies to its extraterritorial targeting of Canadians, to the extent that Canada’s international obligations apply to the extraterritorial targeting of Canadians? I do not see how they could contest this point, given the Hape and Khadr line of cases.
  2. Does the government agree that Canada’s international obligations (under LOAC) do extend to the extraterritorial targeting of Canadians? Again, I cannot see how the government could argue that LOAC does not apply to Canada in Syria and Iraq.
  3. Does the government take the view that compliance with LOAC complies with the Charter? But if so, then it becomes even more important to resolve the LOAC issues raised in points 2 and 3 above.
  4. Does the government believe that the “international obligations” that serve at the litmus test for the extraterritorial application of the Charter are confined to those international law principles that protect the person (such as LOAC and human rights law)? What would the government say about the possibility that the Charter may also be engaged where other international law issues are in play, such as the jus ad bellum issues in point 1 above? Personally, I think it fair to conclude that the Charter is only engaged by person-protecting rules in international law and not state sovereignty-protecting rules, but the issue is undecided.

Other countries have pronounced on these issues (or at least some of the international ones). I think it is dangerous that Canada is clearly prepared to kill Canadians without explaining in any real way how it does so lawfully.  For one, that creates confusion even at the political level, with debates over “extrajudicial executions”. For another, when Canada applies a principled legal approach to the use of hard power, actually spelling out those principles distinguishes us from countries (say Russia) who are less fastidious. But the public might be forgiven for failing to see the difference between Russian bombing and Canadian bombing if Canada doesn’t bother with the explanations.

 

 


[1] Joint Committee on Human Rights, supra note 1 at para 4.24. See also ISC, supra note 11 at para 72, expressing related process concerns.

 

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