Section 7 International Liaisons in National Security Work and Their Implications for Human Rights in Canada

Canada has long-standing security and intelligence liaison arrangements with international partners. In a formalized way, these arrangements date back to the Second World War. For most of the Cold War period, Canadian membership in a security and intelligence alliance system was considered beneficial, as it provided access to a large pool of intelligence otherwise unavailable to Canada given the limited resources it devoted to intelligence. The costs involved a possible reduction of sovereignty, should Canada be steered by the information controlled by its foreign partners or by the national self-interest of foreign states.⁷⁶ Human rights impacts were not a major issue, at least in the very limited public debate on such matters.

The terrorist attacks of September 11, 2001, altered the way of calculating the benefits and costs of intelligence liaison and sharing relationships. It has been widely acknowledged by Western intelligence officials that the onset of a global war on terrorism has had two major impacts. One is that the difficulty of collecting intelligence on individuals or groups that are not acting on behalf of a state and practice asymmetric warfare has forced intelligence services to put even greater emphasis on intelligence alliances than during the Cold War and post-Cold War periods. Intelligence alliances allow for increased collection, global range, and burden sharing. A second major impact has been that states have been forced to look outside the traditional network of intelligence partnerships to construct intelligence-sharing relationships with new states in threatened regions of the world that have their own internal experience of dealing with terrorism.⁷⁷

The increased volume of intelligence sharing, post-9/11, among members of the traditional Western intelligence alliance (often referred to as UKUSA and now known informally as the "Five I…s") has raised some concerns with regard to impacts on human rights. These concerns have focussed on the construction of watch lists to monitor cross-border travel, new techniques for intelligence gathering, and the extent to which the legal norms in Western states now differ following the introduction of new counter-terrorism legislation. Concerns have also been raised in regard to the US practice of "extraordinary rendition," whereby persons the US deems to be terrorist suspects are held and transferred to foreign jurisdictions for interrogation and imprisonment.

Concerns about citizens falling into the net of extraordinary rendition intersect with the newer phenomenon of intelligence-sharing relationships with non-traditional security and intelligence partners, especially among Middle-East and South-Asian states. In constructing new intelligence relationships with such states, Western countries confront the problem posed by exchanges with states that do not respect Western norms of human rights and that practice torture on those in detention. The dilemma is real and no obvious solution is at hand. The benefits of pursuing intelligence relationships with non-traditional allies seems clear—access to potentially significant sources of information on terrorist groups and activities. The drawbacks are equally clear: condoning repulsive legal systems and possibly abetting violations of international law banning the practice of torture.

Two general safeguards have been adopted to try to resolve the problem of intelligence sharing with non-Western states. One is to introduce systems that will ensure that Western intelligence services will attempt to exercise internal care and caution when exchanging intelligence with states whose human rights records is substandard. Such attempts have no legal enforcement mechanism and may not receive full scrutiny by review agencies. They depend on internal cultures and leadership decisions. Amnesty International (Canada) has expressed its concern about reliance on such safeguards and argued for setting clear legal restrictions on the sharing of intelligence with states with unacceptable human rights records.⁷⁸

A second safeguard has been to seek assurances from foreign states that they will treat detainees humanely, as part of the process of transferring them for interrogation and incarceration. Human Rights Watch has been particularly critical of the hollowness of such assurances in its public reports.⁷⁹

One of the substantial difficulties that must be faced in any public discussion of the role of security and intelligence alliances and their impact on human rights is secrecy. Intelligence alliances are shrouded in secrecy. The terms of engagement are not public documents, even with regard to agreements reached in the earliest days of the Cold War, much less more recent practice. For example, while there has been much public discussion of the formation of the UKUSA alliance in the late 1940s, which provided the foundation for all subsequent evolutions of the Western intelligence alliance, the actual documents detailing that formation of this alliance have not been released by any of the partner states (Britain, the United States, Canada, and later Australia and New Zealand).⁸⁰

In the Canadian context the shroud of secrecy has been partly penetrated thanks to the activities of the Security Intelligence Review Committee (SIRC). SIRC was established under the CSIS Act in 1984 to review the activities of the Canadian Security Intelligence Service.⁸¹ It consists of a committee of Privy Councillors appointed by the government and supported by a staff of security-cleared officials. It has full access to CSIS documents and officials and presents an annual report to the Minister (currently the Minister for Public Safety). An expurgated version of the report is presented to Parliament by the Minister.

SIRC regularly reviews liaison arrangements with foreign agencies and reports on them annually. The most recent SIRC annual report (for 2004-2005) specified that CSIS’ relations with foreign entities are subject to the provisions of Section 17(1) of the CSIS Act and that section 38(a)(iii) of the Act directs SIRC to review all such arrangements. In its 2004-2005 annual report SIRC reviewed CSIS’s exchanges of information with "close allies"; the operations of a security liaison post abroad; and the expansion of existing liaison arrangements. While SIRC pronounced itself generally satisfied, it was concerned in some instances with inadequate documentation and unclear operational procedures for specifying responsibility for intelligence exchanges.

SIRC also drew attention to the fact that the existing assurances regarding human rights protection provided by CSIS when it enters into a new arrangement with a foreign agency could not be guaranteed. It noted that, when CSIS initiates the process, it is required to inform Foreign Affairs Canada and the Minister of Public Safety that it will "closely scrutinize the content of the information provided to, or received from, a foreign agency in order to ensure that none of the information sent to, or received from, that agency is used in the commission of, or was obtained as a result of, acts that could be regarded as human rights violations." SIRC noted dryly that CSIS could not provide any absolute guarantee in this regard. It advised merely that the content of the letters sent to Foreign Affairs Canada and Public Safety be revised to better accord with the limits of CSIS ’s knowledge and control of information.⁸²

Ministerial direction is a crucial aspect for the establishment of relations by CSIS with foreign agencies. The establishment of new arrangements or the expansion of existing ones can be initiated by CSIS but must secure prior approval of the Minister of Public Safety in consultation with the Minister of Foreign Affairs. There is a "ministerial directive" in place that sets the conditions for such approvals. As reported by SIRC, the ministerial directive requires that four conditions must be met:

1. Foreign liaison arrangements must be required to protect Canada’s security.
2. They must be compatible with Canada’s foreign policy objectives.
3. They must respect the applicable laws of Canada.
4. "The human rights record of the country or agency is to be assessed, and the assessment weighed in any decision to enter into a cooperative relationship."⁸³

The fourth condition is telling. It calls for an "assessment" of the human rights record of a foreign state and for a process of "weighing" of the record against unspecified benefits in the pursuit of an intelligence relationship. Respect for human rights in such a context depends on both the quality and reliability of CSIS’s assessments of foreign countries’ rights records and of the sensitivity of the "weighing" process. Given the tight rules surrounding official secrecy, it is impossible for the public to hold CSIS to account with regard to either factor. The extent to which SIRC can successfully fill the gap is limited by the fact that its annual reports to Parliament are deliberately sanitized.

SIRC annual reports, whatever their merit, tend to gain little sustained public attention in Canada. The principal source of public controversy over Canada’s intelligence relationships with foreign states in the post-9/11 period has been the Arar case and the testimony presented in public by senior government officials to the O’Connor Commission. A key aspect to emerge from testimony has concerned the practices and policies surrounding intelligence sharing.⁸⁴ This testimony has shed additional light on CSIS practices, RCMP procedures, and differences in information handling between the two security agencies. The details of the testimony given at the O’Connor Commission will not be reviewed here, but it should be noted that one of the cornerstones of the long-established practice of intelligence sharing with the United States may have been modified post-9/11 or abused post-9/11. This cornerstone is the application of information controls, known as "caveats," by both the RCMP and CSIS. Caveats were historically meant to severely limit the circulation of sensitive information exchanged between government agencies so as to protect sources and methods.

Respect for caveats is not just a matter of operational necessity. They are also a principal means by which the impact of national security investigations involving human rights and privacy can be responsibly managed. To the extent that the traditional practice of caveats is seen as a hindrance to fast-paced counter-terrorism investigations in a post-9/11 world, the danger increases that human rights and privacy protections will be sacrificed. This represents a potential abuse rather than an abuse that can be fully documented at this stage.

Justice O’Connor’s findings, when released to the public, should provide substantial insights into the practice of Canadian intelligence agencies when it comes to sharing with foreign partners, both traditional and new.

Key recommendation (See also Section 6 for a similar finding):

The CHRC should commission a study of the human rights dimensions of the O’Connor Commission report, which could provide vital foundational material for its annual "human rights report card."