The number of Canadian spies authorized to violate the law is increasing, according to an internal memo. The memo is classified and provides a glimpse into the murky world of how operatives can bypass normal rules with prior approval.
Under current law, people cooperating with the Canadian Security Intelligence Service (CSIS) and “acting in good faith” have a “limited justification” to “commit acts or omissions that would otherwise constitute a criminal offence.” , the memorandum to Canada’s Minister of Public Safety said. . Legal analysts say that limited justification could be granted to agencies, contractors or intelligence agencies.
A November 2022 memo obtained under the Access to Information Act states that these illegal activities are “performed or directed to be performed as part of the Service’s information and intelligence collection duties and functions.” There is a possibility.”
The memo requested approval for a new spy.
Data on the number of agents authorized to commit crimes was compiled from these records, but the memo states that the number of people granted this special permission is increasing. The reason for the increase has been redacted.
The records were released at a tense time for intelligence agencies. Recently, there were claims from the Prime Minister of Canada that Indian government officials killed a prominent Sikh separatist in Vancouver. Debate over foreign election interference. and concerns about how CSIS collects information about opponents of large energy projects.
“We know the threat environment is becoming broader and more diverse, so an increase in special permissions shouldn’t surprise anyone,” Michael Nesbitt, an associate professor at the University of Calgary’s faculty of law, said after reviewing the records. he told CBC News.
“The devil really is in the details. The real question is whether there is enough oversight and review to ensure some transparency, to ensure accountability, and to protect against abuse.”
Protection from criminal liability, CSIS says
Once approved by the minister, it will last for up to one year and can be renewed, according to the document.
A CSIS spokesperson said the tool is extremely important.
“Given the need to protect sensitive activities, techniques, methods and information sources, there are important limits to what can be discussed publicly,” CSIS spokesperson Eric Balsam told CBC News. said in an email.
He said that the legal justification framework cited in the memo “allows CSIS personnel and personnel acting at their direction to engage in activities with terrorist suspects in an effort to gain their trust. “Protected from liability,” he said.
“For example, the very act of giving instructions to a human source operating covertly within a suspected terrorist organization could constitute a terrorist offense under the Criminal Code,” Balsam said.
“Another example is providing electronic items, such as cell phones, to enable human sources to access important information. It is a fundamental principle of society.”
Questions about supervision
But civil liberties groups are not convinced that the current preclearance system can adequately monitor spies operating outside the law.
Tim McSorley, national coordinator for the International Civil Liberties and Human Rights Monitoring Group, said: “We are deeply concerned that national security agencies are able to act covertly and carry out these acts and crimes.” “We really don’t know how they’re using this. There needs to be clarity and accountability to the public.”
Current rules generally do not allow authorization for operatives to carry out certain tactics. Instead, the request seeks permission to conduct activities under broad categories, McSorley added.
Civil liberties advocates agree that there are certain cases in which security agencies need to bend normal rules, such as gaining the trust of undercover agents who infiltrate violent neo-Nazi groups or terrorist organizations. There is.
However, given that information gathered by spies is rarely brought into open court, meaning the accused party has a right to defend against the allegations, McSorley believes these powers should be transferred to police agencies. I would like to leave it to you.
He said police typically aim to allow some degree of due process and prosecute people accused of wrongdoing. The court can then investigate the tactics used by the security forces.
In contrast, spies typically gather information in the shadows.
“When intelligence agencies have the authority to conduct real-world activities, they are usually done in secret and cannot be challenged in open court,” McSorley said.
Mr. McSorley cited the 2015 case of Mohammed al-Rashed, an alleged CSIS intelligence agent in the Middle East, as an example of how intelligence agents are suspected of breaking the law in the past. He was charged with aiding and abetting people to smuggle people into Syria. She joined ISIS in 2015.
Current rules requiring CSIS officials and agents to obtain prior approval to violate the law did not exist at the time Al-Rashid allegedly worked with CSIS.
“If Canadians were to learn that CSIS was collaborating with individuals involved in human trafficking, it would lead to serious ethical issues,” McSorley said, adding that in theory, investigators could investigate similar types of illegal activity in advance. He added that approval has now been granted.
Al Rashid’s case was first brought to light by a British journalist and caused an international uproar. In November 2022, Canada’s National Security Intelligence Review Agency (NSIRA) launched an investigation into what happened.
Who has the permission?
According to the latest information, NSIRA Annual ReportCSIS was authorized to commit 172 criminal acts in 2022. This is up from 83 permits in 2019 and roughly on par with 2021, when there were 178 permits.
In each of the four years cited in the report, non-CSIS employees won the majority of authorizations. In 2022, all but 41 permits were granted to third parties, including intelligence agencies like Mr. Al-Rashed and private contractors.
“That raises the question of why individuals and operatives who are considered human intelligence sources are carrying out more of these acts, and what kind of oversight and review there is,” McSorley said. Stated.
In a separate November 2022 memo, CSIS addressed “errors identified in the initial review” to the Minister of Public Safety. The nature of these errors has been redacted. The Ministry of Public Security referred the interview request to CSIS, which did not comment directly on the matter.
In a subsequent CSIS briefing, the agency said two employees were mistakenly given this designation to commit criminal acts, even though “neither…invoked the justification framework.”
Even if these mistakenly granted powers were not used, Brenda McPhail, acting executive director of McMaster University’s master’s program in public policy in a digital society, said the situation remains concerning.
“There are red flags about the process,” she told CBC News. “Ultimately, these are the most extreme powers an agent can have, so great care must be taken to get these specifications correct.”