This week, Neil Macdonald at the CBC has been reporting on WikiLeaks cables illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. That CSIS routinely shares intelligence with the U.S. should come as a surprise to no one, of course. That CSIS provides details to the U.S. with names and personal details of Canadians “suspected” of what CSIS refers to as “terrorist-related activity” should perhaps also not be too surprising, either, given what we learned during the Arar Inquiry and other similar proceedings. What is surprising — and alarming — is how little evidence of wrongdoing, or even suspected wrongdoing, is required before a Canadian is named a terrorist threat. As the CBC reports:
The criteria used to turn over the names are secret, as is the process itself.
But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.
In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.
Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.
The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.
The experience of Maher Arar has taught us of the terrible consequences that can flow from cavalier designations of individuals as terrorist threats. Acting on faulty intelligence supplied by the RCMP, the United States arrested, interrogated, and renditioned Arar to Syria, where he was tortured. The Arar Commission ultimately found that the actions of Canadian authorities led to his mistreatment at the hands of the Americans, and recommended that strict limitations be placed on how information about Canadians is shared with foreign governments. This recommendation has yet to be implemented, and indeed, as the Council of Canadians points out, the Canadian government is actually working to increase the flow of personal information from Canada to U.S. government databases.
But as Paul Cavalluzzo, lead counsel for the Arar Commission, told the CBC, “Once you give the name to the Americans, that’s the end of the game.”
And the process for naming, as reported by the CBC, is distressingly faulty:
… as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being “targeted.”
“It certainly doesn’t meet any criteria of due process in the sense that the individual has no representation whatever. Don’t tell me there’s a devil’s advocate. That and a dollar will get you a cup of coffee.”
And nor, does it seem, there be any requirement of evidence that the named individual has actually engaged in criminal conduct or is even suspected of engaging in criminal conduct. As we’ve said before in these pages, the anti-terrorism laws in Canada’s criminal code are breathtakingly broad in scope, and offences run the gamut from “facilitation” and “harbouring” to conspiracy, threats to commit a terrorist act, and to the actual terrorist act itself. Without even a requirement of reasonable suspicion to commit any sort of criminal offence, individuals can be deemed terrorist threats and their names provided to the U.S. government.
As if all this wasn’t troubling enough, the CBC reports today that one of the individuals named in the cables as a potential terrorist is Mubin Shaikh, a Canadian citizen and CSIS operative whose testimony was critical in securing convictions in the Toronto 18 terrorism trials. As Neil Macdonald points out, Shaikh’s inclusion on this list can only really mean two things.
The first is that the listing process employed by CSIS is seriously flawed, and resulted in the incorrect designation of a Crown agent as a terrorism suspect, exposing him to all of the attendant consequences flowing from being named a potential terrorist.
The second is that Shaikh’s inclusion on the list is not a mistake, and that the Canadian government did legitimately suspect him to be involved in terrorist activities. In which case, the question becomes why this information was not provided to the defendants in the Toronto 18 trials, where Shaikh’s evidence was crucial to the Crown’s case. Indeed, this is the question that counsel for the defendants are asking now, and demanding that the government answer. As reported in the CBC:
“It was his evidence that took them all down,” Alberta lawyer Dennis Edney told CBC Wednesday night. Edney represented Fahim Ahman, a ringleader who eventually pleaded guilty and remains in prison.
“Most of the warrants for wiretaps that were obtained were obtained as a result of conversations he had with the suspects.”
“It takes your breath away,” said Mitchell Chernovsky, a lawyer who represented another of the Toronto 18. “It rings alarm bells all over the place.”
Both Chernovsky and Edney said they would probably make formal demands to the Crown, asking why they were not told of whatever information led CSIS to denounce Shaikh to the Americans. Defence counsel are legally entitled to disclosure of all such information, in order to prepare their cases.
And these cables likely represent just a small sampling of the names provided to the Americans in recent years. The number of names provided is likely to be much higher than the 41 reported in the WikiLeaks cables, so it’s unclear how many more cases like Shaikh’s there are. Given the extreme secrecy of intelligence sharing, it’s also impossible to know whether adequate safeguards are in place to ensure that there are controls over the use of personal information by foreign governments. What is clear is that some true accountability mechanism must be available to ensure that individuals are not branded as terrorists and their personal information disclosed to foreign governments without any limitations. So far, however, CSIS isn’t responding to CBC’s request for comment on its stories, and it isn’t providing the public with any real answers either, so it remains unclear whether — and how — the rights and security of Canadians are being protected.
ETA: National security expert Wesley Wark provides his views on the implications of Shaikh’s listing in the Ottawa Citizen.