By Monia Mazigh – The Protection of Canada from Terrorists Act (formerly Bill C-44) was introduced in the House of Commons immediately after the Parliament Hill and the Saint-Jean-sur-Richelieu shootings in October 2014. The legislation had been sitting on the government’s shelves and the tragic incidents offered the “strategic timing” for the government to table it in the House. Bill C-44 became law in February 2015 with 174 voting for it and 81 opposing it.

This anti-terrorism legislation introduced three major changes:

• It allowed the Canadian Security Intelligence Services, CSIS, to conduct its operations and functions overseas;
• It provided CSIS informants with “greater protection” such as not having to identify them in court, even to the judge, with the notable exception of when the innocence of the accused is at stake in a criminal trial;
• It allowed Canadian judges to issue warrants for CSIS activities outside Canada even if this would violate foreign laws.

The changes were obviously answers to a wish list formulated by CSIS after it was rebuked in the court system. Indeed, both the Federal court of appeal and the Supreme Court of Canada (in the case of Mohamed Harkat’s security certificate) ruled that, unlike police informants, confidential informants hired by CSIS should not enjoy the same protection of their identity. Instead, the court decided that protection should be determined on a case-by-case basis.

Furthermore, allowing CSIS to operate outside of Canada, even if the operations would violate foreign laws, was also a remedy to a harsh decision rendered by Judge Mosley who criticised the actions of CSIS which at the time obtained help from the Communications Security Establishment to spy on Canadians overseas and “kept the court in the dark about the scope and extent of the foreign collection efforts.”

One crucial aspect of Bill C-44 is that the Conservative government said nothing about it being retroactive.

Therefore, we were shocked to learn last week that the Liberal governement, in its fight against the lawsuit brought by Abdullah Almalki, Ahmad El-Maati and Muayyed Nureddin, decided to continue pushing for C-44 to be considered retroactive so that the greater protection of informants included in the legislation would apply to the years when the detention and torture of the three men occurred. This action is even more puzzling in light of the fact that the Liberals had previously supported a motion in 2009 calling for the three men to receive an apology from the government and be compensated.

Why is the Liberal government now opposing these men’s right to get justice? What happened to the accountability that we have been hearing of in the recent months, specifically in the mandate letter to the Public Safety Minister among others:

• Assist the Leader of the Government in the House of Commons in the creation of a statutory committee of Parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.
• Work to repeal, in collaboration with the Minister of Justice, the problematic elements of Bill C-51 and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.

It would be a great mistake for the Liberal government to fight victims of torture. Extending CSIS already large powers to make them retroactive won’t take us anywhere near accountability.

Sources:

http://www.huffingtonpost.ca/2014/10/27/bill-c-44-csis-spy-watchdog-conservatives_n_6055512.html

http://www.thestar.com/news/canada/2016/02/06/liberals-back-csis-in-torture-lawsuit.html

http://pm.gc.ca/eng/minister-public-safety-and-emergency-preparedness-mandate-letter

By Monia Mazigh – Last week, something quite unusual happened. Ralph Goodale, the Public Safety minister, alongside his colleague Harjit Sajjan, the Defence Minister, held a scrum in the presence of journalists on Parliament Hill to speak about, respectively, the Security Intelligence Review Committee (SIRC) report and the Office of the Communications Security Establishment Commissioner (OCSEC) report.

But the most unusual thing was to have an official from the OCSEC do the briefing to the journalists, an action that has never been done before. One should remember here that the CSE is a very secretive federal agency and the OCSEC, the organization supposed to watch and report on its activities to parliament, has always suffered from their work being censored by CSE itself.

Even though, we didn’t learn much from the ministers about the two agencies other than what is public knowledge, this attempt at transparency is a positive step but it is certainly not enough.

The bomb that was revealed during that media encounter was that a “software glitch” (I emphasize on how this has been described, as if to minimize the impact or the scope of the information) caused the data collected on Canadians to be unduly shared with the other Five Eyes members without taking sufficient measures to protect individual identities. This information can be email addresses, phone numbers, who knows?

The former Defence Minister, Rob Nicholson, was briefed about that security breach at the time, more than two years ago, but he kept it secret from Parliament and from the Canadian public. Is this acceptable in a democracy? How come no one has called for the resignation of Rob Nicholson yet? Didn’t he mislead the House by keeping this information secret? I am sure that he will respond that at that time he had taken the best decision based on national interest. But how can we really know? Why should we trust his judgement? Why do we have to call this an “honest mistake”? Do we have the evidence to declare so?

Today we have a greater incentive to have a parliamentary oversight that wouldn’t allow this behaviour to happen and perpetuate. And we have another reason to also create a “super SIRC” that would allow review of the work of all agencies involved in national security. So we won’t leave it up to ministers’ discretion to decide on these important files.

Inside the SIRC report, we learned that CSIS, on several occasions, obtained tax information on Canadian citizens without a warrant. SIRC discovered it and recommended to CSIS to correct the situation and follow the proper procedure. But how do we know that the Canadian Border Services Agency isn’t doing the same thing? Or that Transport Canada or Health Canada aren’t also getting information on us without following the proper procedures? Normally, we should trust our institutions but since breaches have already happened, can we still trust them? Can we just rely on the candour and honest judgement of officers and ministers?

With these additional reasons, we ask loudly and yet again for the implementation of Justice O’Connor’s recommendations and for comprehensive, integrated and robust review mechanisms that would monitor the work of all 21 federal departments and agencies that are involved in national security activities, and truly protect Canadians and our rights.

By Monia Mazigh – Immediately after 9/11, Alan Dershowitz, a prominent and controversial American lawyer, created an outrage among human rights organizations when he published an article in The San Francisco Chronicle entitled “Want to Torture? Get a Warrant.” In his article, Dershowitz argued that government could use torture (he specified it should be non lethal) in a “ticking-time bomb scenario”. In a nutshell, his argument would condone the use of “some type of torture” if this will save the lives of hundred of thousands of people.

I do not agree with this argument as I firmly believe that torture can never be justified, neither can rape, or any other kind of brutality afflicted on people, no matter how “legitimate” or “appealing” the reasons used to try and justify it.

In Canada, the debate around torture reached us first through Canada’s participation in the Afghanistan war with the transfer of detainees programs and the use of torture by the Afghani forces under the orders of the Canadian military. And it didn’t stop there. In 2011, Vic Toews, the Public Safety Minister at the time, sent ministerial directives to the Canadian Security Intelligence Service (CSIS), giving them the authority to use and share information that was likely extracted through torture.

Like Dershowitz’s Machiavellic argument, the use of torture won’t be officially condoned but Vic Toews makes sure to mention, “that protection of life and property are the chief considerations when deciding on the use of information”. Thus forgetting that this information may have been derived from torture.

One year later, Vic Toews progressed in his attempts to legalize torture and sent similar memos to the RCMP and CBSA.

The almost identical directives allow these agencies to share information obtained through torture. Once again, the “ticking-bomb scenario” is evoked. The difference here is that it is named “exceptional circumstances” and the justification is “in order to mitigate a serious risk of loss of life, injury, or substantial damage or destruction of property before it materializes.”

Last week, Ralph Goodale, the new Public Safety Minister, quietly declared that these controversial directives enacted by the previous government will be reviewed. The news didn’t attract much attention.

I believe that this is one of the most promising and courageous actions so far taken by the government. Will the Canadian “torture memos” be removed? Will this shameful legacy of using information extracted from torture be stopped and reversed or is it too late? Last summer, the media reported that CSIS got the green light from a high-level internal committee to interview a Canadian detained abroad as long as captors gave “proper assurances” that the person would not be abused. Of course, we know that similar “proper assurances” were also required by the American when they rendered Maher Arar to Syrian jailers. And of course, we know today that he ended up being tortured and the assurances were worthless. We will definitely keep following this matter.

Sources:

http://www.cbc.ca/news/canada/rcmp-border-agents-can-use-torture-tainted-information-1.1161388

http://www.huffingtonpost.ca/2016/01/19/troubling-conservative-torture-policy-up-for-review-goodale-says_n_9016126.html

http://www.cbc.ca/news/politics/csis-relied-on-no-torture-assurances-from-foreign-agencies-memo-reveals-1.3136825