Wednesday, February 19, 2014
By Matthew Behrens
A few years ago, Canada’s bird lovers came in for some well-deserved looks of bemusement when many wondered why their cute little bunchies and canaries kept disappearing every time a cat was placed inside their birdcages. After all, it was argued, cats were subject to significant and robust oversight mechanisms such as the Feline Activities Review Committee, to ensure the birds would be safe from purring predators.
That refusal to recognize the nature of the beast also infects the ongoing discussions within the “national security industrial-academic-media complex” about what to do with the fact that Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), along with its next-door neighbor, the Communications Security Establishment Canada (CSEC), continue invading the privacy rights of people at home and abroad and violating the law (not to mention committing perjury in front of Federal Court judges and aiding and abetting acts of torture).
The latest round of hand-wringing arises from a late 2013 Federal Court decision by judge Richard Mosley. It may be safely assumed that Mosley’s face holds the bull’s eye position on the CSIS Ottawa office’s well-used dartboard, given he is a no-nonsense, hard-working member of the judiciary who, unlike almost all of his weak-kneed colleagues, is not coy when it comes to criticizing the antics of Canada’s scandal-plagued spy agency. His decision, a warrant application by [NAME REDACTED], noted that there “was a breach of duty of candour owed by [CSIS] and their legal advisors to the court,” and that “It is clear that the exercise of the court’s warrant issuing authority has been used as protective cover for activities that it has not authorized.”
CSIS Risks Complicity in Torture
In this instance, CSIS was granted permission in 2009 to spy on Canadians abroad, but Mosley discovered that CSIS had, without judicial permission, illegally asked foreign agencies to spy on Canadians overseas, even though, as Mosley noted, this “carries the risk of the detention of or other harm to a Canadian person based on that information. Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several royal commissions, there can be no question that the Canadian agencies are aware of those hazards. It appears to me that they are using the warrants as authorization to assume those risks.”
The language is fairly restrained, but in essence, CSIS and its lawyers lied to the court, and “a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information” in Federal Court applications “about their intention to seek the assistance of the foreign partners. As a result, the court was led to believe that all of the interception activity would take place in or under the control of Canada.” Mosley also found that in asking foreign agencies to track Canadians “CSIS and CSEC officials knew…this would involve the breach of international law by the requested second parties.”
Mosley sighs that an unspecified number of additional warrants on fresh or renewed applications had been issued by the court and that “in the majority of these cases, if not all, CSIS asked CSEC to task their foreign partners [REDACTED, but clearly in reference to illegal activity.].”
Mosley only came to the conclusion something was amiss because he is a voracious reader of various reports and, when he was going over the annual reports of the CSEC Commissioner and the Security Intelligence Review Committee (SIRC), he realized that he had been duped. He subsequently called numerous witnesses before him, with one of them, CSEC’s James Abbott, “candidly” admitting that his evidence in support of the original warrant application was “‘crafted’ with legal counsel to exclude any reference” to their plans to use second parties.
A special lawyer, Gordon Cameron, was appointed to assist the court, and he concluded that the serious breach by CSIS of the duty of candour to the was exacerbated by the “failure to acknowledge the lack of candour in this proceeding because it demonstrates that [CSIS] does not understand its duty when it comes before this Court ex parte.”
In other words, the cat does not understand it should not eat the birds in the cage, even though the Feline Activities Review Committee has repeatedly said such consumption violates the rights of the birds.
Government Lawyer Advice Breaks the Law
The Deputy Attorney General of Canada does not fare well in this proceeding either, with Mosley noting that one of Canada’s most powerful legal practitioners essentially argued “that the Court should be kept in the dark about matters it may have reason to be concerned about if it was made aware of them. In the circumstances under consideration that would include matters relating to the prior history of attempts to have the Court authorize the collection of security intelligence abroad and the potential implications of sharing information about Canadian persons with foreign security and intelligence agencies.” Indeed, Cameron also found that the Attorney General’s position seems to be that “CSIS can contract out interceptions of Canadians’ communications or accessing Canadians’ information without any warrant or supervision by this Court."
Of course, the world of national security can get blurry sometimes, especially since some parts of the CSIS Act allow spies to break the law. Indeed, Mosley points out, one section allows CSIS to seek special authority “to engage in investigative methods that would otherwise constitute a crime or a breach of the Charter guarantee against unreasonable search and seizure.”
Despite this get-out-of-trouble free card, Mosley notes later that “There is nothing in the CSIS Act or in its legislative history, to my knowledge, that suggests that in enacting [the abovementioned exception] Parliament granted express legislative authority to CSIS to violate international law and the sovereignty of foreign nations either directly or indirectly through the agency of CSEC and the second parties.” Despite this, he notes, “CSIS and CSEC officials knew, based on the legal advice that they had been given … that [tasking other parties to monitor Canadians] would involve the breach of international law by the requested second parties.”
The manner in which the Deputy Attorney General and CSIS are interpreting the law, Mosley found, is not consistent with prior Supreme Court decisions and the law itself, and that “CSIS and CSEC officials are relying on that interpretation at their peril and, as cautioned by the CSEC Commissioner and SIRC, incurring the risk that targets may be detained or otherwise harmed as a result of the use of the intercepted communications by the foreign agencies. Section 12 [of the CSIS Act] does not authorize the Service and CSEC to incur that risk or shield them from liability, in my view.”
CSIS: We Never Break the Law
While it is good to see that word liability arise in such a decision – and Mosley
firmly stated that CSIS and CSEC cannot justify their activities based on the issuance of special warrants by the Court – there is no guarantee these agencies will comply. Indeed, in its daily boilerplate special, CSIS responded to Mosley by saying everything it does is consistent with “Canadian laws and values,” and while this may be true given the history of Canadian laws and values that have justified the kidnapping, torture, and murder of First Nations children, the rejection of Nazi-era Jewish refugees, the internment of thousands of Japanese heritage, among countless other violations, it does show that even in the small world where individuals like Mosley try to hold CSIS to some kind of lawful standard, it is ultimately impossible to keep them in check. (Notably, CSIS also quietly admitted in a Senate hearing that they would be appealing the decision).
Mosley has previously found CSIS witnesses have failed in their duty of candour to the court. Indeed, one Toronto man, Hassan Almrei, faced a decade-long nightmare of solitary confinement and house arrest because a government witness had lied to the court during a secret hearing, while in the Mohmed Harkat secret trial case (still ongoing), another federal court judge found that CSIS’s failure to be honest led to the finding that “it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding.”
So what is to be done? Some point to the Security Intelligence Review Committee as a model that could be expanded to encompass all of Canada’s national security agencies. Space does not allow reference to the extensive findings of exaggeration, lack of candour, and other CSIS malfeasance that fill the pages of the SIRC’s annual reports. But the body has no enforcement power and, besides, has essentially become an enabler of CSIS. Indeed, as early as 1991, SIRC had settled into its role as a kindly big bother to poor, befuddled CSIS, noting “Those who have followed the progress of CSIS with interest have seen our Annual Reports change from being compendiums of direct and implied criticism, in the early years, to being much more supportive accounts of CSIS’ activities in recent years…. But our criticisms are no longer based upon strong and fundamental disagreements with the CSIS view of the world. [emphasis added] They are far more the results of differences of opinion regarding the day-to-day implementation of CSIS policies than, as in the past, our opposition to those policies themselves.”
By the mid-90s, SIRC noted “It is our responsibility to review CSIS’ activities and then to assure the public that we know what CSIS is doing, that we believe that those activities are necessary, [emphasis added] and that they are being conducted in an appropriate and legal fashion.”
Useless Oversight in Parliament
Wayne Easter, a Liberal MP who once signed secret trial security certificates, feels the solution is his private member’s bill to create a group of National Security Parliamentarians “permanently bound to secrecy” that will, when necessary, hold secret meetings to discuss national security and that, while the appropriate government minister may, if he feels like it, share information with the MPs, he is also entitled by law to “provide none of the information.” So much for oversight, even in a secret body. While the committee would produce an annual report for Parliament, the Prime Minister would be allowed to exclude anything he felt was contrary to national security.
Ultimately, the issue is not so much about oversight or review, much as the problem of the disappearing birds could not be solved by the ministrations of the Feline Activities Review Committee. Such discussions divert us from focusing on the nature of the beast: these agencies have historically and continue to play a repressive role that is wholly contemptuous of democracy and, even at a conservative level, the rule of law. From their earliest incarnations, they have targeted as national security threats First Nations and labour organizers, Quebec nationalists, Communists and “Communist-sympathizers”, Canadians of Japanese, German, Italian, Irish, and Ukrainian heritage, Jehovah’s Witnesses and people of Jewish and Muslim faith, the United and Anglican churches, anti-nuclear campaigners and gays and lesbians, and Salvadoran, Kurdish, and Tamil refugees, among countless others. In this context, it is clear who threatens national security in the same way it is clear who threatens the birds when cats are placed in their cages.
CSIS, CSEC, the RCMP, the Attorney General, the “Justice” Department, and their brethren will continue to act illegally and laugh behind the backs of judges, as long as all their minions only ever receive is a slap on the wrist from the system: a few harsh words from a court whose decisions are read and digested by few. Until they face time in the dock, they are unlikely to change their ways.
Even then, though, the potential for post-crime accountability does little to assist the individual who has already been tortured, whose privacy has been violated, whose job has been taken away, whose family cannot get to sleep at night for fear of that knock on the door.
As things stand, despite a lengthy record of criminality and human rights violations, these “national security agencies” continue to enjoy a remarkable degree of respect and deference from the courts, the Parliament, and “oversight” bodies that always assume their “best intentions,” with former Supreme Court judge Frank Iacobucci sadly going so far as to state, in his introduction to a report finding federal government complicity in the torture of three Canadians, that we should be “grateful” to such blood-stained bureaucrats.
Perhaps a national referendum on the abolition of agencies that rely on the creation and sustenance of fear is in order. And maybe we could throw in a discussion on seriously overhauling the kind of unequal society that relies so heavily on such repression.
Until then, the best efforts of the Richard Mosleys and toiling SIRC lawyers will only produce fine words of outrage about illegal acts by secretive men who, nevertheless, will get up each day, go to work, get promoted, and, regardless of the number of skeletons in the birdcage, carry on as before.