Source: The Globe and Mail
URL: [link]
Date: February 15, 2008
Attempts by Canada's spy agency to be granted warrants to carry out overseas electronic intercepts against 10 individuals, including Canadians, have failed.
In a Federal Court ruling made public late yesterday, the Canadian Security Intelligence Service was told that the court could not grant approval for the agency to use one of its most invasive spy techniques overseas.
Mr. Justice Edmond Blanchard of the Federal Court wrote: “I find that this court is without the jurisdiction to issue the warrant sought. Accordingly, the request is denied.”
The 10 unnamed suspects – nine of whom are Canadians or immigrants to Canada – have been at the centre of a legal fight that was a closely guarded court secret.
Some details in the ruling are censored, such as whether the 10 people are alleged to work together.
CSIS officials have in recent years argued for greater autonomy in spying beyond Canada's borders.
CSIS is largely restricted to domestic operations, and its leaders say its hands are tied when suspects leave Canada.
Compounding the problem is the fact that Canada's wiretap agency, the Communications Security Establishment, was created to eavesdrop outside of Canada, but cannot listen in on citizens of Canada inside or outside of the country.
The spy agency says it will not appeal.
“Further to the dismissal by Federal Court of the warrant application, we have elected not to move forward with this particular initiative,” CSIS spokeswoman Manon Bérubé said.
She added that the warrant application was for a very specific purpose. “The court ruling applies only to a warrant application of an intercept abroad. It was for a telecommunications intercept – no break-ins or anything like that.”
Ms. Bérubé added that while Judge Blanchard raised questions about whether CSIS has the mandate to operate outside Canada, his decision was not binding. Other federal agencies, she said, have recognized the need for CSIS to work abroad.
She said today's “threat environment” has caused CSIS to re-examine its methods. “Those wishing to cause harm to Canada do not restrict their movements to Canada's borders,” she said.
But targeting Canadians outside Canada raises questions such as whether such pursuits violate privacy provisions of the Charter of Rights and Freedoms, or run afoul of the Criminal Code of Canada.
The agency finds it is encountering problems never imagined when CSIS was created as a domestic spy agency during the 1980s.
Counterterrorism experts called the case that emerged yesterday remarkable on several levels.
“It's unusual for an intelligence service to signal it is planning to conduct an operation abroad,” said Martin Rudner, who recently retired as a professor from Carleton University. “It's unprecedented in Canada that CSIS has sought a warrant through a court fo r operations abroad.”
Last April, Judge Blanchard had approved warrants that allowed CSIS to eavesdrop and conduct searches against the 10 targets while they were in Canada. “All subjects of investigation, except for one, are Canadian citizens, permanent residents, or refugees,” he wrote in the decision released yesterday.
Then CSIS asked permission to conduct operations against the same targets abroad.
The application was an attempt to provide its agents immunity from prosecution, with CSIS conceding that overseas wiretaps and other spying techniques could be viewed as crimes. Other countries' foreign intelligence agencies, such as the U.S. Central Intelligence Agency and Britain's MI6, engage in such activities routinely.
CSIS officials have told Parliament that up to 50 agents may be operating outside Canada. CSIS director Jim Judd said in an speech 18 months ago that he had sent agents into Lebanon, Iraq and Afghanistan.
Why remains unclear, but the work is limited. For example, CSIS was understood to have been part of a multi-agency 2005 hostage rescue operation in Iraq, and to have had a security screening role as hundreds of Lebanese Canadians fled to Canada after the 2006 Israeli invasion.
CSIS has also had an unspecified “support” role for Canadian soldiers in Afghanistan
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