With C-51's new powers, is CSIS simply catching up to allies?
Conservative government's anti-terrorism law lets spy agency ask judges for permission to break law
With its new mandate, CSIS could take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada. Intelligence services in most of Canada's close democratic allies have had similar mandates and powers for many years." — Public Safety Canada backgrounder on proposed anti-terrorism bill, January 2015.
In introducing its sweeping security bill earlier this year, the government said the Canadian Security Intelligence Service, Canada's spy agency, did not have a legal mandate to take action concerning threats. Rather, CSIS was limited to collecting and analyzing information as well as advising the government.
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The government characterized the bill's proposed new powers — which have since received royal assent — as a means of bringing the spy service's capabilities in line with those of allied counterparts.
How accurate were the government's claims?
Spoiler Alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This one earns a rating of "a lot of baloney."
Some have pointed out that CSIS already used disruptive tactics — for instance by making it known to targets that their activities were being investigated.
The RCMP, Canada's national police force, also fights terrorism through disruption. "The RCMP has a robust range of disruption tools and continues to develop its own threat diminishment capability in light of rapidly evolving changes in the threat environment," the police force said in April 2015 briefing notes.
Still, the government said the anti-terrorism legislation would clearly empower CSIS with a mandate to conduct threat disruption activities.
Under the new law, CSIS needs "reasonable grounds to believe" there is a security threat before taking measures to disrupt it. The spy agency would require a court warrant whenever proposed disruption measures violate the Charter of Rights or otherwise breach Canadian law — the most controversial aspect of these provisions.
The new powers allow CSIS to engage in a joint operation with a foreign partner to divert a shipment of dangerous chemicals, keeping it out of extremist hands.
CSIS can also ask the overseeing court to issue an "assistance order" that would, for instance, require a landlord to allow the spy agency to plant listening devices in a tenant's apartment. Previously, CSIS could not force a building owner to comply with such a warrant.
In addition, the spy agency could provide online "counter-messaging" or even "disrupt radical websites and Twitter accounts" to protect impressionable young Canadians, says a federal background document.
The proposals quickly drew fierce opposition from civil libertarians and environmental and aboriginal groups.
Public Safety Minister Steven Blaney defended the planned powers at a Commons committee, saying:
"Currently CSIS can detect security threats but is unable to take action unlike most allies are doing. With the new threat disruption mandate, CSIS would be authorized to take direct action to disrupt threats to the security of Canada at home and abroad like most of our allies, such as Sweden, Norway, Finland, Denmark, France, United States, United Kingdom, and Australia. It's about time, Mr. Chair."
University of Ottawa law professor Craig Forcese and University of Toronto colleague Kent Roach have analyzed the new anti-terrorism law, including the international comparison claims.
They consulted experts abroad, examined statutes and solicited input from interested parties in examining intelligence powers in Australia, Denmark, Finland, France, Norway, Sweden, the United Kingdom and the United States.
In the end, they dismiss the notion CSIS's new powers are akin to those in any of these countries, saying the comparison is apples and oranges. They say Canada's law is aimed at disruption and threat reduction, so it would be a mistake to compare it to foreign laws that involve:
- Police powers to detect or prevent crimes.
- Powers a foreign intelligence service may exercise in its international operations.
- In addition, they say comparisons must avoid confusing.
- A limited domestic power to be conducted in full compliance with law or human-rights norms with a power by CSIS to break the law and violate the Charter.
- The proposed CSIS powers with those of a country whose security services operate without a legal superstructure and whose conduct is a bit of a mystery.
For instance, they conclude Norway and Sweden have security police services with police powers, "analogous to those exercised in Canada by the RCMP." And the Finnish security intelligence service "seems to be performing a classic police role in relation to codified crimes," Forcese and Roach say.
New Democrat MP Craig Scott used the parliamentary order paper to ask whether the government had drawn up a list of allies that allow their intelligence agencies to take disruptive action within their own borders.
On April 29, Public Safety Canada replied, in part, that in the U.S. the Central Intelligence Agency (though primarily a foreign intelligence agency) can, pursuant to the National Security Act, conduct domestic threat disruption with an executive order. The department also said Britain's MI5, CSIS's approximate counterpart, can, pursuant to section 1 of the Security Service Act, conduct "any activity to protect national security."
However, Forcese and Roach point out that even if the CIA were authorized by a presidential order to conduct a domestic covert activity, its conduct could not violate U.S. law or the American constitution.
The government's assertion about MI5 "is ridiculous," said Steve Hewitt, a senior lecturer in Canadian and American studies in the history department of the University of Birmingham in England.
MI5's activities are circumscribed by British law, he noted. "If you follow the logic of the claim then MI5 could actually carry out targeted killings of anyone in defence of national security. Instead, there has been controversy in the UK about whether MI5 was party to the torture of terrorism suspects by the U.S."
The office of Public Safety Minister Steven Blaney declined to provide any additional information about CSIS and international parallels.
Research efforts by experts have uncovered no parallel for the CSIS disruption powers among Canada's close allies. "Canada is not 'catching up to allies,"' Forcese and Roach say. "It appears to be on an adventure of its own."
In coming to this conclusion, they reject comparisons to the foreign spy powers of the U.S. Central Intelligence Agency and Britain's MI6 since, unlike those agencies, CSIS would also have the unambiguous ability to use its new powers on home soil.
Having said this, the federal government, in citing parallels with foreign counterparts, did not distinguish between the domestic and international capabilities of CSIS.
Even so, according to the experts the new CSIS powers exceed those of several allies, such as Australia, and therefore should not be described as merely an attempt to keep up with foreign counterparts. In addition, the government seems to have overreached in pointing to the domestic powers of the American CIA and Britain's MI5 as a rationale for CSIS's new authorities within Canada.
For these reasons, the government's claim contains "a lot of baloney."
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
- No baloney: the statement is completely accurate
- A little baloney: the statement is mostly accurate but more information is required
- Some baloney: the statement is partly accurate but important details are missing
- A lot of baloney: the statement is mostly inaccurate but contains elements of truth
- Full of baloney: the statement is completely inaccurate