The Sixth Estate

I am somewhat disturbed by the apparent decision of the Canadian Security Intelligence Service to remove from its website all annual reports prior to 2000. You can see the effects of this memory hole exercise here. CSIS has of course been around since 1984, and been issuing declassified versions of its annual reports since 1991. Given the tiny size of these reports, I can see no reasonable explanation for why they are no longer available online.

Finding the right balance between national security and public rights is a difficult task in a democracy, and intelligence services sit right in the centre of that debate. The public reports are pretty bland and nondescript fare, for the most part. So are the annual reports of its supposed watchdog, the Security Intelligence Review Committee, which, as I have noted before, is pretty much toothless (and bark-less) due to a lack of any real authority combined with a lack of credible experience. In any case, I am now linking to all of the old CSIS reports at the Documents page, as a public service, since CSIS apparently no longer wishes to do so. Here’s a summary of the interesting material:

First of all, as I have noted before, the reports don’t mention much. But they do show a very interesting slippage in the definition of what exactly CSIS does. In democracies, we rigidly wall off the police, the domestic intelligence people (who can spy more than the police, but can’t be violent or abusive), and the foreign intelligence people (who can pretty much do whatever they like (e.g. the CIA and MI6). These walls exist on the principle that the more likely an agency is to come into contact with the citizens, the more it has to be prevented from taking abusive actions towards the public. Otherwise it eventually starts seeing the public as the enemy, and acting accordingly. CSIS exists because the RCMP Security Service hit this wall in the 1970s, when it started committing arson and framing separatists. They had their intelligence powers taken away. They got them back again after 9/11, and promptly got into trouble again by helping the Americans abduct and torture Maher Arar.

In between, though, there was a good-faith effort to prevent abuses from recurring, undertaken by both Pierre Trudeau and then Brian Mulroney. One move, for instance, was barring the agency from collecting foreign intelligence overseas, to prevent it from becoming a Canadian CIA. That’s what it says in the CSIS Act, and what it said in 1991:

CSIS legislation reflects Parliament’s determination… that CSIS would fulfill a defensive role. Any departure from this is explicitly covered in Section 16…, which provides for the Service to assist the departments of External Affairs and National Defence… This information… must not be directed at Canadians and must only be undertaken in Canada.

Then again, here’s what it had to say on the matter in the last published annual report, in 2009:

In order to meet the Government of Canada’s strategic intelligence requirements, CSIS continued to improve and increase its presence and collection efforts overseas in 2008-09… CSIS also continued to provide security intelligence support to the Canadian Forces in Afghanistan. CSIS has had a presence in the country for the past few years and also continues to gather intelligence in the region in order to mitigate potential security threats to Canada.

You’re not wrong to notice a discrepancy here. What CSIS is describing here is, on plain reading, flatly illegal. A federal court agreed in 2007; CSIS appears to have simply ignored the ruling. Not only is it not allowed to do “strategic” intelligence abroad, it’s mandate says it can “support” the military in Canada, and nowhere else.

Along with its expanding power has come an expanding budget. As you can see from the following chart, despite the end of the Cold War and the recent diminishing of the perceived terrorist threat, CSIS funding has exploded since $158 million in 1989, the year the Cold War ended, to $430 million in 2009. Even after inflation, that’s a 77% increase, all of it since 2002. All that extra weight has to go somewhere, so CSIS is building a new headquarters

Are there abuses of power hidden within all this activity? CSIS won’t own up to anything, of course: according to the annual reports, everything is all good, all the time. However, if you read reports from the SIRC review body, you get a definite sense that things aren’t right. That’s especially alarming given that SIRC currently consists of a gang of retired health ministers with no knowledge of security intelligence and no authority to do anything even if they did have the knowledge. When a tired old watchdog still barks, it’s probably not just being hyperactive and overly excitable.

Here’s a taste of the incidents which SIRC has publicly announced over the past five years, as examples of misdeeds it encounters during its more or less random sampling of CSIS activities:

• SIRC’s now-declassified assessment of Omar Khadr’s mistreatment at Guantanamo Bay is somewhat moot, since the Supreme Court has already ruled that CSIS’s behaviour there was illegal, but worth reading anyways.

• In 2005-06, CSIS botched the security vetting of a Canadian diplomat, Bhupinder Liddal, resulting in an “unfair and prejudicially inaccurate” report leading to the removal of his security clearance. The public annual report is circumspect, but a secret investigative summary pulled no punches. It found that CSIS, after realizing its error, attempted to cover up the affair by “purposely misleading” the Commission. The fact that CSIS attempts to lie to its own review agency was not mentioned in standard public documents, only leaked materials, and so we are left to guess whether this is a common occurrence. Presumably it is.

• In 2007, SIRC reviewed the case of Mohamed Jabarah, an admitted Canadian member of Al-Qaeda. Jabarah was part of a terrorist cell abroad which existed before solely belonging to a listed terrorist group was made a crime in Canada by the Chretien government, and which was broken up before it could carry out any attacks. Under then-Canadian law, this meant he had not committed a crime. However, under American law, he was guilty of belonging to a terrorist organization. So Jabarah was lured into CSIS custody under false pretenses and abducted to be carried south to be handed over to the Americans. CSIS’s disturbingly Orwellian excuse to SIRC was that it didn’t think it had to respect his Charter rights because they weren’t a police force. SIRC also noted that important documentation about the episode was either conveniently missing or had been withheld by CSIS.

• In 2007-08, SIRC reported that “one of CSIS’s largest and highest-priority investigations” was concerned with a group which had not been tied to any terrorist actions and which a “large body of…literature” suggested was actually “non-violent.” SIRC recommended that CSIS should have to consider whether a group is violent, and then added, in a rather disturbing aside, that the usual approval process had not always been followed with respect to “the Service’s… targets in sensitive Canadian institutions,… academic, political, media, religious and trade union fields.”

• The same year, SIRC reported that CSIS had been conducting security screenings of immigrants under informal and unapproved guidelines based on obsolete laws, and was regularly destroying notes taken during interviews, meaning the resulting reports could never be checked against any initial record. The problem surfaced when it turned out CSIS had asked the immigration minister to declare a Pakistani immigrant inadmissible after he volunteered the information that he had belonged to a radical group years before coming to Canada, something which was not a crime. SIRC said he should be allowed to stay… of course, this happened in 2004, so SIRC was 4 years late.

• In 2010, SIRC found that CSIS interrogators had conducted an “aggressive” interview with a prospective government contractor, in which she claimed they threatened to withhold the necessary security clearance unless she shared information which CSIS believed she possessed about a foreign country. She didn’t, and the clearance was delayed. After the SIRC complaint was filed, it was suddenly approved. SIRC says it trusts CSIS that the interview was above-board and that the timing of the approval is purely a coincidence.

I’ve put up the SIRC reports on the same Documents page, for reference, although they haven’t been pulled offline (yet).