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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Wednesday
Aug082007

Human Rights and Intelligence Sharing with Foreign Intelligence Agencies

Originally posted March 2006 in beta version of this blog site.

Sub-section 17(b) of the CSIS Act empowers the Service "with the approval of the Minister after consultation by the Minister with the Minister of Foreign Affairs, [to] enter into an arrangement or otherwise cooperate with the government of a foreign state or an institution thereof or an international organization of states or an institution thereof" for the purpose of performing CSIS's functions.

Document CNSLArchives Doc. #05-01 (CSIS Policies and Procedures) sets out the procedures applied by CSIS in entering into a Section 17(b) arrangement. Among other things, CSIS apparently completes a review of the foreign agency's human rights record in assessing potential new foreign arrangements. Further, according to the document "If there are allegations of human rights abuses, the Service always ensures to use a cautious approach when liaising with the foreign agency and closely scrutinizes the content of the information provided to, or obtained from, the foreign agency" either "in an effort to avoid instances where the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations" (p.11) or "to ensure none of the security intelligence information exchanged with the latter is used in the commission of acts which would be regarded as human rights violations".

The Security Intelligence Review Committee reported in its 2004-2005 report, however, that in at least one of the foreign arrangements that it audited "did not provide an adequate analysis of potential human rights issues." Further, it objected to CSIS's pledge to "ensure" that information exchanged leads to human rights abuses:

"First, the use of the term 'ensure' implies that CSIS will make certain that the information shared does not lead to—or result from—acts that could be regarded as human rights violations. However, the Committee concluded that CSIS was not in a position to provide such an absolute assurance. As Mr. Elcock told the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, CSIS would not necessarily reject information that might have been obtained as a result of human rights violations. He explained that CSIS '[is] there to collect information... that may reflect on a threat to the security of Canada and we will look at information from any source in order to secure some information about threats to the security of Canada.'

Second, while CSIS is cautious when sharing information with foreign agencies, it cannot determine in all cases how that information is used by the recipient agency. Similarly, the Service is rarely in a position to determine how information received from a foreign agency was obtained. As Mr. Elcock stated to the O'Connor Commission, when it comes to information that may have been the product of torture, 'the reality is in most cases we would have no knowledge that it was derived from torture. You may suspect that it was derived from torture, but that is about as far as one will get in most circumstances.' ...

SIRC acknowledges that CSIS must rely on information received from its foreign partners to fulfill its mandate, and that the exchange of information between security intelligence agencies is an essential investigative tool. However, the Committee found that CSIS's assurance to the Minister could be misinterpreted as it is rarely in a position to determine how information that went to a foreign agency is used, or how information it receives was obtained.

SIRC recommended that CSIS revise the content of the letters to Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness to avoid leaving any impression that it can guarantee that information sent to, or received from, a foreign agency was not used in the commission, nor was obtained as a result of, acts that could be regarded as human rights violations. "

Also notable is the following extract from a news story describing CSIS testimony in the ongoing Harkat security certificate proceeding in Federal Court:

"A senior analyst with the Canadian Security Intelligence Service says he has never taken steps to understand whether information received by the agency has been obtained through the use of torture. The analyst, who regularly produces intelligence reports for senior government officials about al-Qaeda and the threat it poses to Canadians, conceded in Federal Court yesterday that the reliability of information can depend on how it was obtained. Yet the analyst, identified only as P.G., admitted he has never raised questions about the treatment of intelligence sources overseas. 'I have never personally asked any individual whether specific information was obtained under torture, no,' he said in response to a question from lawyer Paul Copeland. Judge Francois Lemieux interrupted Mr. Copeland's cross- examination to ask P.G. how he could be satisfied that the information he receives is reliable if he never inquires about the use of torture. P.G. told the judge that the key to intelligence analysis is corroboration, and that even information obtained under torture can be useful if verified through other sources." Andrew Duffy, "CSIS Agent Didn't Ask If Informant Was Tortured", Ottawa Citizen (Nov. 4, 2005) at F.1.

Wednesday
Aug082007

Department of National Defence Documents on 2002 Detainee Policies and Practices in Afghanistan

Originally posted March 2006 in beta version of this blog site.

Controversy arose in 2002 over the role of Canadian Forces in transferring prisoners captured during Afghan operations to U.S. forces. By that point, the United States had adopted policies on treatment of "unlawful combatants" potentially incompatible with the international law of armed conflict, a body of law binding on Canada. CNSLArchives Doc. 05-02 contains internal "media lines" and advice to the Minister of National Defence (MND) prepared during this period, dealing with the treatment of detainees by Canadian Forces in Afghanistan. CNSLArchives Doc. 05-03 contains documents describing the policies and procedures of Canadian Forces in relation to detainees. These documents were obtained via Access to Information requests covering (roughly) the period 2002-2004.

Wednesday
Aug082007

Ministerial Directions to the RCMP on National Security Investigations

Originally posted March 2006 in beta version of this blog site.

Pursuant to the Security Offences Act, the RCMP retains important national security functions. Unlike with regular policing -- where police independence is a vital concept -- in national security investigations, political oversight might be expected to be robust. In November 2003 (a month after Maher Arar returned to Canada), the then-Solicitor-General of Canada issued three ministerial directions on RCMP conduct of national security investigations. These directions are found in CNSLArchives Doc #05-04.