Speeches and Presentations

Updated: 2006 08 22

Speaking Notes for
Canadian Bar Association
Panel on National Security
and Human Rights

Mr. Jim Judd
Director, Canadian Security Intelligence Service

St. John’s, Newfoundland
August 15, 2006

It is a pleasure to be with you this morning to participate in this panel discussion on national security and human rights.

I was asked to provide you with a brief outline of national security policy and priorities, institutions, operations and issue. I will start at a very broad level and then narrow down more specifically to my own organization, the Canadian Security Intelligence Service.

Policy Framework:

Let me begin with the policy framework. A little more than two years ago the Government of Canada issued a national security policy entitled, Securing an Open Society: Canada’s National Security Policy.

That was noteworthy in several respects:

The policy identified three core national security interests for Canada:

The policy then went on to identify the specific threats to national security
facing Canada and Canadians – and as I mentioned before, did so in a very comprehensive fashion. The policy statement identified the following eight threats:

As you can see, the list goes well beyond the traditional domain of security and intelligence organizations. That said, these are all threats with which we in Canada or Canadians abroad have had some experience.

There a few other issues that were highlighted in the 2004 policy statement that I will address shortly.

There is one other point about the policy that is worth noting – a comment in the introduction to the policy which said:

“Securing an Open Society articulates core national security interests and proposes a framework for addressing threats to Canadians. It does so in a way that fully reflects and supports key Canadian values of democracy, human rights, respect for law, and pluralism.”

I wanted to cite that passage as a reminder that human rights and national security are neither mutually exclusive nor irreconcilable universes.

The 2004 policy statement followed on the heels of a series of different actions taken by most Western governments, our own included, in the last decade and particularly in the wake of September 11, 2001 - all in an effort to counter the growing phenomenon of international terrorism.

These included: increased spending on security and intelligence operations; the promulgation of new legislation; and the military campaign in Afghanistan to unseat the Taliban regime and the Al Qaeda networks it sheltered.

The new legislative regime adopted in Canada with the passage of the omnibus Anti-Terrorism Act was done so with the proviso that it be subject to Parliamentary review within three years. That Parliamentary review process was begun last year, interrupted by this year’s federal elections, and resumed in the new Parliament this year.

We have also seen two other developments by many governments in response to this phenomenon. One has been changes to the structure of government security machinery as we have witnessed in the United States with the new Department of Homeland Security and the new office of the Director of National Intelligence or here in Canada with the Public Safety Department.

As well, there has been a move to better integrate intelligence sources through the establishment of new intelligence “fusion centers” bringing together staff from an array of government agencies and police services so as to ensure more comprehensive national security analysis and warning capacity. In Canada, the 2004 policy mandated the establishment of an Integrated Threat Assessment Centre. It focusses on threats from terrorism and today includes representatives from a dozen or so federal agencies and police services. It is currently led by a senior officer of the RCMP.

In addition, a premium has been put on better intelligence and information sharing, both domestically and internationally, to help ensure access to the fullest possible range of threat information. At the international level, this is critical for Canada and for my organization, given its responsibilities. Canada is and has been historically a “net importer” of intelligence. Annually, we accept several hundred thousand refugee and immigration applicants from around the world – from more than 145 countries, in fact. And every year, we have more than a 100 million people cross our borders. Finally, the current threat of global terrorism is one which features trans-national networks and a high degree of international mobility by those engaged in this activity.

Both of these measures reflected to some extent a concern that “institutional stove pipes” would hamper effective collaboration, thereby adding to the risks posed by the terrorist threat.

Finally, beyond the actions taken by individual governments, there have been a series of multilateral measures adopted through the United Nations over the last several decades to set new international standards and regimes aimed at responding to the threat of terrorism. These have been subsequently reflected in many domestic legislative regimes, our own included.

Current National Security Threats:

While the list of security threats identified in the 2004 policy is certainly valid and current, my own organization is especially focussed on three of those issues – that is to say terrorism, the proliferation of weapons of mass destruction and foreign espionage (and interference in Canada’s domestic affairs). I might add that the national security threat environment is very different from that which existed when CSIS was established over two decades ago.

Terrorism – here or abroad – and the threat that it poses to Canada, Canadians, our allies and others, is our pre-eminent concern today and has been for some years now. The 2005 United Nations report on Human Security identified terrorism as the most rapidly growing cause of casualties around the world.

More specifically, our pre-occupation is with what I would term the terrorism associated with the ideology of Al Qaeda. That is to say Al Qaeda as an organization itself, groups affiliated with it, or those inspired by its ideology. This is a pre-occupation that is shared by most governments of the Western world and others as well.

Obviously terrorism is not a new phenomenon, even in industrialised democracies. In fact, prior to the September 11 attacks, the single worse terrorism incident, in terms of loss of life, was Canadian in origin – i.e. the 1985 Air India bombing.

So what is it that differentiates the contemporary threat of terrorism to the extent that it was identified as the first national security threat in the 2004 policy statement? Very briefly, the characteristics of the current threat of terrorism include:

National Security Institutions:

In Canada, there is an array of federal organizations today with an interest or role in national security issues, particularly as concerns the range of threats identified in the 2004 policy.

They range from Transport Canada, the Coast Guard, CATSA and others (with a mandate for transportation security) to the Canadian Border Services Agency (with responsibilities for the transit of goods and people across our borders) to Health Canada, the Canadian Food Inspection Agency and the Public Health Agency – all with responsibilities related to health safety or issues such as pandemics. The list goes on at some length and is further expanded when provincial and municipal institutions are added.

I will confine myself to those engaged in the more narrowly or traditionally defined world of national security. That narrows the list more substantially to include:

Privy Council Office – coordination of federal security and intelligence activities, intelligence analysis, support to the Cabinet Committee on Foreign Affairs and National Security, and advisor to the Prime Minister on these issues;

Public Safety – Minister responsible for the RCMP, CSIS and the Canada Border Services Agency; development of policy on security and law enforcement issues; provision of operational direction to CSIS, and the federal lead on emergency preparedness and response;

Foreign Affairs Canada – diplomatic reporting on developments outside Canada and a major consumer of foreign intelligence;

National Defence and the Canadian Forces – operational intelligence supporting Canadian Forces deployments abroad;

Royal Canadian Mounted Police – federal law enforcement agency with responsibility for national security-related prosecutions under the Criminal Code;

Communications Security Establishment – responsible for both foreign communications interception intelligence and the protection of Canadian Government cyber communications;

Canadian Security Intelligence Service - responsible for the collection of national security intelligence inside and outside Canada; the collection of foreign intelligence (that is information about foreign governments) within Canada; and for security screening assessments for federal government employees, refugee, immigration and citizenship applicants, and some other sectors such as the Canadian nuclear industry.

Law Enforcement and Intelligence:

Of all of these various agencies, the two with the principal operational responsibility in the national security world, narrowly defined, are the RCMP and CSIS. Most of you are probably familiar with the role and operations of the RCMP but, I suspect, less so with my own organization.

While we work closely with the RCMP and other police services, law enforcement and intelligence are two very different activities. A variety of features differentiate the two, although we do work closely with the RCMP and, indeed, other police services in Canada. The differences include:

Intelligence Operations:

CSIS collects intelligence through a variety of means, both covert and overt. These include:

Our national security investigations are proportional to the threat in question.
At the lowest level, an investigation would entail checks of open source information or existing information holdings. A next level might involve, for example, a personal interview and limited physical surveillance. The most intrusive level of investigation could involve extended physical surveillance, communications intercepts or covert physical search of premises.

To put all of this into some context, we might have, in any given year, several hundred investigations involving warranted powers. A number of these would be directed against foreign government agents. These investigations would represent only a fraction of the potential threats that might be initially drawn to our attention throughout the year.

Targeting decisions for such investigations are reviewed and decided upon by a group of officials from CSIS, the Public Safety Department and Justice Department lawyers. Investigations at the most intrusive level also require CSIS to obtain a Federal Court warrant to exercise those powers. Again, warrant applications are reviewed by officials from the same three agencies and an independent counsel prior to seeking the approval of the Public Safety Minister to proceed to the Federal Court.

A similar review process is utilized to engage in foreign intelligence operations, although they are only instigated at the request of the Minister of Foreign Affairs or the Minister of National Defence. Investigations are also terminated throughout the year, again subject to a similar review process.

Confidentiality:

Confidentiality is obviously a significant fact of life in what we do. We do not acknowledge which individuals or organizations we are investigating. We do not reveal human sources, the identity of employees in covert operations, investigative techniques or the specifics of our relationships with foreign agencies.

The confidentiality reflects a variety of motives ranging from personal safety, our own or other legislation such as the Privacy Act, the need to avoid tipping our hand to targets (in terms of either our investigative interest or methods of operation). We also need to maintain the confidentiality of information received from foreign governments without which their willingness to share information with us would vanish – very much to the detriment of the country’s national security interests.

The confidentiality of what we do and how we do it is, of course, lifted in our applications for warranted powers before “national security designated” Justices of the Federal Court. This applies to both national security and foreign intelligence investigations. As well, confidentiality restrictions, except for Cabinet confidences, do not apply to our two external review agencies or special inquiries such as that being conducted by Mr. Justice O’Connor.

Our applications to the Federal Court for warranted powers provide full disclosure of the rationale for the application, the sources (public, confidential, domestic or foreign) we are relying upon, and the rationale for the specific powers sought. Our affiants, legal counsel and supporting experts respond to questions from the Federal Court which may and do cover any and all aspects of the application. The powers sought in applications may be (and are at times) amended as a result of this review by the Court.

Increasingly, we are also providing the Court with more detailed background information on both the techniques and technologies we use in our investigations so as to provide the Court with a broader context in which to consider our applications. The same is true with respect to our review agencies.

One important issue that we and other Western intelligence services have been grappling with for some time relates to how national security intelligence information can be used in criminal prosecutions in open court proceedings. This is especially problematic given the confidentiality caveats surrounding national security investigations that I described earlier. This is one topic, among others, that former Supreme Court Justice John Major will be addressing in the new Air India Inquiry.

External Review:

When CSIS was created, one factor was uppermost in the minds of its designers: how to ensure that appropriate safeguards were in place to protect the rights of Canadians given the nature of the mandate of CSIS. As a consequence, more than two thirds of our Act deals with Ministerial direction, judicial control and external review mechanisms.

As I mentioned, our targeting decisions and warrant applications are reviewed by representatives of the Public Safety Department and lawyers of the Justice Department. Our priorities are set annually by Ministers and operational direction to the Service is set by the Public Safety Minister.

Any relationship that we have with a foreign agency must be agreed to by two Ministers – the Minister of Foreign Affairs and the Minister of Public Safety. In addition, any such arrangements must take into account the human rights record of the agency or country in question. Any exchanges of information with foreign agencies are then subject to subsequent scrutiny by our external review bodies.

There are two external review bodies unique to CSIS and established in our legislation. The Inspector General reports annually to the Public Safety Minister on our compliance with the law and Ministerial direction. A second agency, the Security Intelligence Review Committee, composed of five Privy Councillors, reports annually and publicly on our activities and operations in addition to conducting separate reviews of public complaints on our activities. Both of these agencies also conduct ad hoc reviews of our organization throughout the year, sometimes more than a dozen a year.

We are, as well, subject to review by all of the agents of Parliament – from the Auditor General to the Privacy Commissioner and others – and other agencies of the Federal Government such as the Canadian Human Rights Commission. We also appear regularly before committees of Parliament to discuss either specific issues or, as has been the case, since early last year, to participate on hearings related to the Parliamentary review of the 2001 Anti-Terrorism legislation.

In addition to the foregoing, we have also been substantially involved in the Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar; the 2005 review by Bob Rae of the 1985 Air India bombing; and now the just launched Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182.

One final point on this is that the Government has also committed to establishing a new Committee of Parliamentarians to review security and intelligence activities.

In sum, we are without doubt, I think, the most reviewed organization of any in the Federal Government and the most reviewed intelligence service anywhere in the world.

Summary:

I hope that the foregoing has given you some sense of the national security landscape here. As I said at the outset, I would be happy to fill in any blanks I may have left, during the discussion period.

Date modified: 2006-08-24

Important Notices