Intelligence Sharing Between the United States and Canada
The Canada Institute of the Woodrow Wilson International Center for Scholars and the Canadian Centre of Intelligence and Security Studies (CCISS) at Carleton University co-hosted a publication launch and panel on the topic of Canada-U.S. bilateral security and intelligence relations. The roundtable discussion was co-sponsored by the Canada Institute on North American Issues (CINAI).
The publication, Intelligence Sharing between Canada and the United States: A Matter of National Survival, was the sixth issue in the One Issue, Two Voices series. The two authors of the publication, Robert Henderson, an Ottawa-based security analyst, and Fred Hitz of the University of Virginia School of Law—both international experts in the field of intelligence—were on hand to exchange their views on the state of bilateral intelligence cooperation in response to terrorist threats.
Together with the other panelists, Ron Atkey of Osler, Hoskin & Harcourt in Toronto and Nathalie Des Rosiers, dean of the University of Ottawa's Faculty of Law, the authors discussed the imperatives for North American security relations as well as the implications of Judge O'Connor's report and its recommendations for bilateral information sharing and intelligence cooperation.
High-ranking members of the security and intelligence communities, the legal profession, and the academic and diplomatic communities as well as government officials, public policymakers, and current and former politicians attended the event. Media attendance included CPAC and several American and Canadian print journalists.
Fred Hitz opened his remarks by complimenting Justice Dennis O'Connor on the Arar Report. Hitz pointed out that because the United States chose not to participate in the inquiry, some matters were beyond Judge O'Connor's ability to evaluate, specifically what information the United States possessed independently of that supplied by the RCMP with respect to Maher Arar.
Hitz praised the O'Connor report for looking towards the future instead of dwelling on the mistakes of the past in the Arar matter: "The idea of cooperation between the United States and Canada on matters of terrorist intelligence exchange is so important that even a major disaster such as this one should not—cannot be permitted to interrupt the orderly flow. The question is what went on here? And I think on a number of occasions, Judge O'Connor points out that it wasn't a matter of bad faith in the context of how CSIS and RCMP dealt with things."
To put the situation into context, Hitz described the chaotic atmosphere in the months immediately after 9/11, noting that North America was reeling from the consequences of the attacks and that the intelligence services on both sides of the border were trying to figure out how to deal with the new experience. Hitz said it was not a situation of cleaning up the mess after it occurred; rather both Canada and the United States wanted the RCMP, the FBI, the CIA, and CSIS to develop sources of information that would allow the authorities to prevent a major future terrorist attack. Hitz pointed out that with the passage of the Patriot Act in 2001, the United States enhanced its capacity to monitor suspected terrorists.
Hitz also addressed the issue of extraordinary rendition, emphasizing at the outset that he had been a long-time opponent of the practice. Hitz said that what happened to Maher Arar was tantamount to extraordinary rendition; he described how he thought the immigration judge in New York had viewed the case, namely, that Arar was a dual citizen of Canada and Syria, and that it was perfectly within his scope of judicial authority to remove Arar, as a Syrian citizen, to Syria. Hitz did say that it was unusual for the United States to take such a step, and even unprecedented in the face of Canadian opposition. Hitz stated that Canadian authorities had indicated that they wanted Arar back in Canada, even though they probably would not have been able to continue any extensive formal proceedings against him.
Hitz said that the practice of rendition had started some years ago in the context of U.S. authorities retrieving suspects in terrorist acts. Hitz was in the CIA at the time that Mir Aimal Kansi killed two agents and wounded three others outside the entrance of the CIA compound in suburban Washington D.C. before escaping to Pakistan. Over a period of time, with the help of the Pakistani government, Kansi was returned to the United States, where he was tried in the Fairfax County circuit court.
Hitz explained that until recently, extraordinary rendition worked as it had in the Mir Amal Kansi case, capturing people who had committed or were suspected of committing terrorist acts abroad, and bringing them to judicial proceedings in the United States for those crimes. However, the Arar case showed how the practice had expanded to include holding suspects of Middle Eastern origin or citizenship and delivering them to authorities in Middle Eastern countries for interrogations that might not follow what is considered proper in Canada or the United States. Hitz predicted that the practice of extraordinary rendition would eventually end, insisting that it had no place in the U.S. system of government or in the war against terror.
Hitz then expressed concern about proposed procedural for intelligence organizations. In spite of what he called a "miscarriage of justice" in the Arar case, Hitz argued that the United States should not "go overboard and make stillborn this cooperation that has long existed" between law enforcement and intelligence services on both sides of the border. In his opinion, ensuring that those in the intelligence field receive quality training will be crucial to the future of intelligence sharing between Canada and the United States.
Hitz stated that his biggest worry was about a proposed increase in oversight: "If you begin to set up review panels, all you're going to do is lengthen the time before these very important exchanges of intelligence information take place. And all of you can just surmise in a fast breaking terrorist situation what an absolute disaster that would be." Hitz stressed that everything possible must be done to ensure that the mistakes made in handling and sharing information in the Arar case were not repeated in the future: "We've got to describe the information that's being exchanged for what it is. If it's just a rumor, if it's an allegation, if it's a tidbit, it has to be put in those terms."
He argued that the solution was to have a process in place that ensured that the individuals handling the information know the rules, the extent of their authority, and the fact that they would be held accountable for any errors in conduct. He concluded his remarks with a warning that too many controls on the exchange of information between intelligence authorities in Canada and the United States could cause intelligence analysts to think twice before sharing information between countries for fear of making a mistake. Such a situation would bring dire consequences for the federal government in its efforts to collect intelligence, he said.
Robert Henderson began his presentation by quoting from Canada's first ever National Security Policy, issued in 2004: "There is no conflict between a commitment to security and a commitment to our most deeply held values. At their heart, both speak to strengthening Canada. Canadians have built a remarkable country shaped by a deep attachment to democracy, the rule of law, respect for human rights, and pluralism." Henderson cited several pieces of legislation that had strengthened this perspective over the last 25 years including the Charter of Rights and Freedoms—a document similar to the Bill of Rights in the United States—guaranteeing basic human rights for Canadians and foreign residents in Canada; the Privacy Act of 1985; and the Personal Information Protection and Electronic Documents Act of 2000—protecting personal information from unlawful use.
Henderson argued that even before 9/11, a number of Canada–U.S. intelligence-sharing accords had already been in place. Just as the United States had quickly passed extensive security legislation in the USA Patriot Act in October 2001, Canada fast-tracked its own omnibus Anti-Terrorism Law of 2001 (Bill C-36) in December of the same year. Henderson emphasized, however, that there was no evidence that Canada had adopted an American-style "extraordinary rendition" policy, whereby detained terrorist suspects could be deported to countries with a poor human rights record for the purpose of information extraction, including interrogation under torture.
Henderson agreed with Hitz that it was vital to remember that the continuing exchange of security information between Canada and the United States was essential to the security of a shared North American continent. He highlighted Judge O'Connor's comments in the Arar Report that the information-sharing policies of the RCMP were essentially sound, but that the RCMP and other Canadian security agencies needed to ensure that information was not passed to any foreign government agencies—including those in the United States—except under the strictest procedures, written caveats, and institutional oversight. In addition, the sharing of personal information on Canadian citizens and residents also had to meet the moral, legal, and human rights standards set out in the Charter of Rights and Freedoms, the privacy laws, and the Criminal Code of Canada. Moreover, just as there was a review body for external reporting on the activities of CSIS, Henderson agreed with Judge O'Connor that there ought to be a similar body established to oversee the information-sharing practices and activities of the RCMP.
Henderson also addressed other Canadian intelligence cooperation concerns, such as the extensive security powers under the USA Patriot Act of 2001, border watch lists and detention powers within the United States, and the ability of American law-enforcement agencies to access personal information held by a number of corporate bodies. He maintained that since many Canadian corporations and some provincial governments outsourced the processing and maintenance of their data records to U.S. companies, Canadian personal information (such as credit-card use, health records, and airline travel) could possibly be made available for security inspection by the U.S. government without the knowledge of Canadian government agencies or Canadian legal protections.
Outlining the prospects for continued intelligence sharing, Henderson pointed out that as the United States and Canada continued to integrate as a North American economic market, the post-September 11th security threats would become an even greater driver for a North American security zone. In his view, the exchange of intelligence between allied nations is necessary for survival in today's world, where individuals with extremist views could perpetrate acts of mass killings. Henderson reminded his audience that Canada was one of the few Western countries explicitly cited as a target by Osama Bin Laden that had not yet suffered an Al Qaeda-related terrorist strike.
Henderson concluded his presentation by highlighting the three core national security interests that the Canadian government outlined in its 2004 National Security Policy: (1) to protect Canada and Canadians at home and abroad; (2) to ensure that Canada was not a base for threats to the United States and other Canadian allies; and (3) to confirm that Canada continued to contribute to international security efforts. Henderson stressed that the protection of the United States was placed second to protecting Canada, and restated his conviction that effective bilateral intelligence cooperation constituted the first line of protection for both countries against terrorist threats.
Ron Atkey opened his remarks by noting that that his role on the commission of inquiry was that of amicus curiae where he represented the public, not the Commission itself. He remarked that intelligence gathering has historically fallen outside the responsibility of the RCMP; however, since 9/11, Canada's national police force has seen its role shift to one where it coordinates all tips received about terrorist attacks, particularly tips coming from the United States. Soon after 9/11, the RCMP formed Project Shock, which was coordinated by the National Security Intelligence Branch within the RCMP; its mandate was prevention, intelligence, and prosecution—the three pillars. Atkey noted that all this was done within ten days, based on communications received from allies, particularly the United States.
Atkey highlighted four recommendations of the Arar Report that he argued were critical for future effective intelligence sharing between the United States and Canada, namely, policies for screening for relevance, reliability, and accuracy, as well as relevant laws for respecting personal information and human rights. In particular, Atkey endorsed Judge O'Connor's recommendation that the information-sharing practices of the RCMP be subject to review by an independent review body. He disagreed with Fred Hitz who had said that any review body ran the risk of creating timing issues in the sharing of intelligence. Atkey argued that it was not the function of the review body to give prior approval, which would slow the process of intelligence sharing, but to sit back after the event to judge how things went.
Nathalie Des Rosiers began her remarks by stating that she had been following the Arar case from the point of view of a professor of constitutional law and what it said about the future of the Charter of Rights and Freedoms in Canada. She said that emphasizing the benefits of protecting human rights was vital to the legitimacy of the intelligence industry and to the prevention of acts of terrorism. She compared Canada's human rights infrastructure to an institutional environment in which employees had to understand the organization's rules and overall objectives. Des Rosiers defended the Charter of Rights and Freedoms by saying: "The first reason why a human rights apparatus exists is because of its moral righteousness. It's the protection of human dignity and the ideals of international covenants that are so important and that give meaning to a strong value system that supports our governance structures in both countries." She described the human rights infrastructure as an example of the beauty of the democratic experiment, illustrating that in democracies based on the rule of law, it was possible to fight terrorism while respecting human rights. In the United States and Canada, "the fight against terrorism is about fighting violence and lawlessness and therefore you cannot fight lawlessness with lawlessness. You cannot destroy terrorism by engaging in lawlessness," she said.
Des Rosiers maintained that a human rights infrastructure legitimized the entire intelligence enterprise by connecting it to democratic governance so that citizens could believe in it and not fear it. For example, she said that citizens will be more likely to cooperate with law enforcement officials if they are aware of the legality and boundaries of intelligence sharing. Moreover, Des Rosiers argued that those who work in the intelligence community need a clear legal framework to follow that would offer assurance that their actions in the line of duty would not violate domestic or international rules of law.
Having made her case about the potential dangers for citizens posed by the intelligence enterprise and the need for the protections afforded by a human rights structure, Des Rosiers articulated what she thought was the key message of the Arar Inquiry: "There's no doubt—I think it's very important to understand how much the entire event of Maher Arar was a shock to the Canadian public. I think it was a shock to see a Canadian tortured in Syria, and I think it had a really big psychological impact on the Canadian psyche. To that extent, I think it has destabilized our confidence and explains why people want to be reassured that it cannot happen again. Hence, Justice O'Connor's Report."
Des Rosiers agreed with the three other panelists that the practice of extraordinary rendition should be banned worldwide and be recognized as an unacceptable practice that only combated terrorism with lawlessness. She insisted that it is unacceptable to apply extraordinary rendition to people holding Canadian citizenship. She emphasized that it was important for Canada to cooperate on building a strong positive human rights framework that would enhance intelligence sharing between countries and strengthen the Canadian intelligence community.
Panel moderator Martin Rudner fielded questions from the audience at the conclusion of the presentations. The first question inquired about the contentious U.S. decision to keep Maher Arar's name on its border watch list; Fred Hitz replied that it was perplexing to him why the United States, if it had derogatory information to corroborate the Canadian intelligence on Arar, did not share it with Canada at the outset. Hitz stressed that intelligence exchanges were supposed to be for the mutual benefit of each party, but in this case, the United States did not appear to be holding up its end of the bargain.
An intelligence analyst asked if the panelists thought there might be a chill on information sharing between the United States and Canada. Nathalie Des Rosiers said the question raised a larger issue of thresholds in terms of when to act on information and what to do about it, particularly since thresholds might differ from one side of the border to the other. In Des Rosiers' opinion, the current discussion was essentially about whether the Canadian government viewed the legal protections in the United States as inferior to those in Canada, adding that the difficult questions had to do with extradition in the sense of whether to extradite or not and, if so, what conditions to attach to the extradition. Ron Atkey speculated that the current stalemate on the border watch list might be a timing issue, that the U.S. position was dependent on the outcome of litigation before the courts.
Atkey responded to a question about the morality of "outsourcing torture" by stating that outsourcing torture was totally unacceptable in any regime, as was any evidence obtained by torture. Hitz elaborated by saying that one could not do something indirectly that one was prohibited from doing directly. Citing the example of assassination, which is prohibited in the United States by executive order, he said the ruling stated that "you could not direct someone else to assassinate on your behalf and not be held responsible." Outsourcing torture, according to Hitz, would eventually be outlawed in the same way.
The panel session closed with comments by Ron Atkey who agreed with Fred Hitz that the Canadian public would adjust to changes in how information is collected and shared between Canada and the United States, remarking that the passport issue had come and gone without causing a major rift in the relationship between the two countries.
Drafted by Stephanie McLuhan, Program Consultant
David Biette, Director, Canada Institute
David Biette, Director, Canada Institute, Woodrow Wilson International Center for Scholars
Panel Introduction and Facilitation:
Martin Rudner, Director, Canadian Centre of Intelligence and Security Studies, Carleton University
Frederick Hitz, Professor, University of Virginia School of Law
Robert Henderson, International Security Analyst, R+E+A Consultants
Ron Atkey, Senior Partner, Osler, Hoskin & Harcourt LLP, Toronto
Nathalie Des Rosiers, Dean, Faculty of Law, University of Ottawa
Martin Rudner, Director, Canadian Centre of Intelligence and Security Studies, Norman Paterson School of International Affairs, Carleton University